EGAN -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 3 (18 January 2024)

1. The indictment in this matter charged Mr Egan with five offences, four of which were alleged to have been committed with Mr Christensen and Mr Ronzitti. The five counts on the indictment were as follows:

(1) Between 20 November 2019 and 23 November at Hamilton Hill and elsewhere James Egan, Ashley Kane Christensen and Nicholas Ronzitti stole a motor vehicle, namely a Toyota Hilux motor vehicle registration 1GPM 241, the property of Central West Refrigeration Pty Ltd.

(2) On 21 November 2019 at Yangebup James Egan, Ashley Kane Christensen and Nicholas Ronzitti while in the place of Finesse Corporation Pty Ltd trading as Claremont Firearms without its consent, committed the offence of stealing

And that James Egan, Ashley Kane Christensen and Nicholas Ronzitti were in company with each other.

(3) On the same date and at the same place James Egan, Ashley Kane Christensen and Nicholas Ronzitti stole a quantity of firearms the property of Finesse Corporation Pty Ltd trading as Claremont Firearms.

(4) On 22 November 2019 at North Lake James Egan, Ashley Kane Christensen and Nicholas Ronzitti wilfully and unlawfully destroyed property, namely a Toyota Hilux motor vehicle registration 1GPM 241

And that the Toyota Hilux motor vehicle registration 1GPM 241 was destroyed by fire.

(5) On 30 November 2019 at Hamilton Hill James Egan attempted to pervert the course of justice by taking a CCTV hard‑drive from 33 Hamilton Road, Hamilton Hill so as to prevent James Egan being prosecuted on a charge of burglary.

1. The State case in relation to each of counts 1, 2 and 3 was presented on the basis that the guilt of each of the accused could be established by proof that each of them either stole the firearms from the premises or aided in the stealing.
2. The State opened on the basis that the 'highly sophisticated nature of the burglary and the way that it was carried out' were such that the jury could be satisfied that more than one person must have been involved. The prosecutor submitted that as long as the jury were 'satisfied that somebody entered and stole firearms and somebody aided, and each accused was either one of those people, they would be guilty'.[3]
3. The State then identified a wide variety of acts that it alleged would, with the necessary intention to do so, involve 'aiding' in the commission of the offence of burglary. Those acts ranged from performing reconnaissance on Claremont Firearms, purchasing items used in the burglary, cutting the holes enabling access, taking hold of firearms as they were handed through the holes, or driving to the vicinity of Claremont Firearms for the purposes of committing the burglary.[4]
4. It will be apparent, then, that the State case at trial depended upon the jury being satisfied as to an act of aiding by each of the accused (including Mr Egan) with the intention of aiding in the burglary, up to and including the use of the Toyota Hilux in the burglary. In this way, the State case in relation to the theft of the Toyota HiLux (count 1) relied upon the same evidence as that in relation to the burglary and the stealing (counts 2 and 3). That is, the case in relation to count 1 was opened on the basis of the extended definition of 'stealing' in s 371A of the Criminal Code; namely that the Toyota HiLux was 'used' in the commission of the burglary and that anyone involved in the burglary would thereby be guilty of 'stealing the vehicle'.[5]
5. By count 5, the State contended that Mr Egan had attempted to pervert the course of justice by taking the hard drive containing CCTV footage belonging to a person who lived across the street from Mr Egan. The State alleged that Mr Egan took the hard drive because it contained evidence that would implicate him in the burglary. Mr Egan was ultimately acquitted of that charge.

1. The State case at trial against each accused (including Mr Egan) in relation to counts 1 to 4 was a circumstantial one, relying upon the combined effect of all of the circumstances to establish guilt beyond reasonable doubt. The State case in relation to each of the accused is summarised below. The following summary does not include all of the circumstances relied upon by the State. The State, for example, adduced a substantial body of evidence to establish that the Toyota HiLux was used in the commission of the burglary.[6] To that end, the State adduced evidence from a series of CCTV cameras to establish the movement of a vehicle matching the Toyota HiLux in and around Claremont Firearms on the night of 21 November 2019, including travelling towards Beeliar Regional Park.[7]

1. Salient features of the circumstantial evidence relied upon by the State in relation to Mr Egan included the following.
2. First, the State adduced evidence that each of the accused were known to, and closely associated with, each other at the time of the burglary. In relation to Mr Egan, in particular, the State relied upon evidence (and admissions)[8] that:

(a) before 23 October 2019, Mr Christensen and Mr Ronzitti were known to Mr Egan;

(b) on 23 October 2019, Mr Egan, Mr Christensen and Mr Ronzitti were together in a car being driven by Mr Ronzitti that was stopped by police at 1.20 am; and

(c) on 21 November 2019 (that is, the day of the burglary), Mr Egan and Mr Ronzitti were together, including attending Bunnings in Bibra Lake together.

1. Secondly, on 21 November 2019 (the day of the burglary), at Bunnings, Bibra Lake, Mr Egan purchased Mechanix brand gloves, a small Energizer torch and grey gaffer tape. Photographs of Mr Egan and Mr Ronzitti in the Bunnings store were tendered in evidence, as were photographs of the receipts for the gloves and the torch, and the gaffer tape, respectively.[9] The invoices recorded the transactions as occurring at 5.44 pm and 5.49 pm.
2. There was also evidence of Mr Christensen and Mr Ronzitti attending Bunnings, Bibra Lake on an earlier occasion (11 November 2009), when Mr Christensen purchased a green (khaki) 'Rhino' Cargo Box and two cans of grey primer spray paint.[10] A green 'Rhino' Cargo Box containing firearms was later found at the Burial site and grey paint and tape was found on the cut concrete at the scene at Claremont Firearms.[11]
3. Thirdly, on 24 December 2019 a search warrant was executed at Mr Egan's address in Hamilton Hill. During that search, police seized two small Energizer torches in the main bedroom of the house.[12] Those torches were examined by a forensic chemist and one of them was found to have residue on it. Analysis of the residue revealed that it was concrete with a composition consistent with the concrete collected from the damaged wall at Claremont Firearms, although it could not be excluded as having come from another sample of concrete.[13]
4. Fourthly, the State adduced evidence of a variety of certificates held by Mr Egan from Auswest Specialist Education and Training Services and the Great Southern Institute of Technology.[14] Those certificates were located at Mr Egan's former partner's house. The certificates certified that Mr Egan had met the requirements for a Certificate 1 in Construction, which included attainment in handling construction materials and using construction tools and equipment. The State contended that the certificates supported the conclusion that Mr Egan had the necessary technical skills to carry out the burglary.
5. Fifthly, also at the former partner's house police seized a balaclava able to be used as a face covering,[15] and a 'snake' (or inspection) camera,[16] able to be used to survey the interior of the burgled premises. The significance of the balaclava was that the State also adduced CCTV evidence of two figures apparently conducting reconnaissance at premises near to Claremont Firearms (Pole Industries) on 24 and 31 October 2019 (see further below at [37]). The significance of the 'snake' camera was that a small hole was identified in the roof of Claremont Firearms, through which a 'snake' camera could have been inserted to view the inside of the premises. DNA analysis of these items did not provide a match for Mr Egan.
6. It may also be noted in this context that evidence was also adduced of a balaclava and snake camera being recovered at Mr Christensen's address. Those items were shown to have mixed DNA samples that included Mr Christensen.
7. Sixthly, the State produced CCTV footage from Pole Industries from 24 and 31 October 2019.[17] That footage depicted two figures in black (including with face coverings). The State contended that Mr Egan's build was consistent with one of the figures. The other figure was alleged to be consistent with the build of Mr Christensen (who had a similar build to Mr Ronzitti). One of the figures was carrying a backpack, which the State contended was a backpack belonging to Mr Christensen.[18]
8. Seventhly, a mixed DNA profile including that of Mr Egan was found on a Browning handgun and a Walther brand holster at the Burial site. The following matters of context are important for understanding the significance of that DNA evidence for the State case.
9. The Burial site was discovered by a civilian witness, John Henry, who noticed disturbed ground in the area at around midday on 25 November 2019. After initially investigating the scene (including handling a number of items), Mr Henry called the police. Police attended at the Burial site later that day, which was declared a protected forensic area.[19] Search warrants were obtained and the area searched.[20]
10. In the course of the search seven areas were dug up and identified as holes 1, 2, 3, 3A, 4, 4A and 5. Those seven areas were depicted on a sketch drawn by Detective Senior Constable Benjamin Lawson, as follows:[21]

1. Various firearms, and related paraphernalia, were found in the holes, including:

(a) in hole 1, a number of leather firearm holsters. There were 60 holsters in total from which swabs were taken;[22]

(b) in hole 2, a Green 'Rhino' Cargo Box. The Cargo Box contained a number of items including five firearms;[23]

(c) in holes 3 and 3A, various containers and firearms;[24] and

(d) in holes 4 and 4A, various clips, containers and firearms.[25]

1. DNA analysis of the holsters found in hole 1 revealed the following:[26]

(a) a DNA profile could not be recovered from nine of the holsters;

(b) a reportable DNA profile could not be recovered from 32 of the holsters;

(c) a complex mixed DNA profile not suitable for further investigation was recovered from 16 of the holsters;

(d) a mixed DNA profile assumed to have originated from two individuals was recovered from one holster. One contributor matched an unknown male and the profile was otherwise not suitable for further examination;

(e) a mixed DNA profile assumed to have originated from three individuals was recovered from one holster. One contributor matched an unknown male and the profile was otherwise not suitable for further examination; and

(f) a mixed DNA profile assumed to have originated from two individuals was recovered from one holster. One contributor matched to Mr Egan and the profile was otherwise not suitable for further examination.

1. DNA analysis of the firearms found in hole 2 revealed the following:[27]

(a) a complex mixed DNA profile not suitable for further investigation was recovered from 16 of the firearms;

(b) a mixed DNA profile assumed to have originated from two individuals was recovered from one firearm. One contributor matched an unknown male and the profile was otherwise not suitable for further examination; and

(c) a mixed DNA profile assumed to have originated from three individuals was recovered from one firearm. One contributor matched to Mr Egan and the profile was otherwise not suitable for further examination.

1. DNA analysis of the items recovered from holes 3, 3A, 4 and 4A either did not recover a reportable DNA profile or recovered a complex mixed DNA profile unable to identify a particular individual.
2. Finally, the State also relied upon the evidence adduced as proof of count 5 (against Mr Egan), as post‑offence conduct that demonstrated consciousness of guilt. The evidence was to the effect that Mr Egan had taken a hard drive containing CCTV footage belonging to his neighbour after police had attended at her home and asked her to download the footage. Proof of those facts relied principally on the evidence of the neighbour.[28] As noted above, Mr Egan was acquitted of count 5.
3. In addition to these individual circumstances relied upon to prove Mr Egan's guilt in respect of the burglary, the State also relied generally upon the sophisticated nature of the burglary and the inference that the planning and execution of it was likely to involve more than one person, each of whom would have trusted the other or others.
4. We will address the combined effect of these circumstances as they relate to Mr Egan in the context of ground 1.
5. Before turning to the defence case, as it related to Mr Egan, it is necessary to say something of the State case against Mr Christensen, as the strength of the State case in relation to Mr Christensen bears upon the grounds of appeal generally. We will also briefly address the State case against Mr Ronzitti.

1. The circumstantial case against Mr Christensen can properly be described as strong. In addition to the matters we have already referred to above (his association with the other accused, the backpack, his purchase of the green 'Rhino' Cargo Box and grey paint on 11 November 2019 and his possession of a balaclava and 'snake' camera bearing his DNA), the State's case against Mr Christensen included the following additional circumstantial evidence.
2. First, on 22 November 2019 (the day after the burglary) police attended the HiLux Burn site and searched the area. The Vehicle Identification Number (VIN) of the burnt vehicle corresponded with the registration of the stolen Toyota HiLux referred to in counts 1 and 4 of the indictment.[29] Approximately 200 m from the Toyota HiLux, police located a vehicle key, consisting of a HiLux key fob, metal key ring and a metal key.[30] Analysis of the surfaces of the metal key ring and a metal key revealed a single DNA profile that matched Mr Christensen.[31]
3. Secondly, at around 2.30 am on 22 November 2019, Mr Ronzitti's Holden Rodeo utility was driven through the drive‑through of a Hungry Jack's restaurant in Spearwood.[32] A receipt from Hungry Jack's, Spearwood, dated 22 November 2019 at 2.39 am for two 'Triple Super Stunner' meals (and a large onion rings) was located at Mr Christensen's home at 34 Bradbury Road, Hamilton (34 Bradbury Road).[33]
4. Thirdly, Mr Christensen's DNA profile was present on a sock found in close proximity to holes 4 and 4A at the Burial site.[34]
5. Fourthly, a camera was located on the roof of business premises next to Claremont Firearms, known as Bellagio Homes. The camera was pointing at Claremont Firearms.[35] A SIM card was taken out of the camera and analysed for DNA.[36] A mixed DNA sample was present on the SIM card, which included Mr Christensen as a contributor.[37]
6. Fifthly, during a search of Mr Christensen's home at 34 Bradbury Road police located a piece of paper with a sketch on it.[38] The State contended that the sketch was consistent with a drawing of Claremont Firearms.[39] The paper had a complex DNA profile not suitable for further investigation.[40]
7. Sixthly, the search of 34 Bradbury Road also revealed a that a section of the wall in the storeroom had been cut into the brickwork.[41] A dustpan outside the storeroom also contained rubble or pieces of brick.[42] The hole in the storeroom wall looked like this:[43]

1. A search conducted at the home of Mr Christensen's aunt, Christina Christensen, in Oxalis Grove, Beeliar on 26 November 2019 located a firearm stolen from Claremont Firearms. Mr Christensen and Mr Ronzitti were observed attending at that residence on 23 November 2019.[44] A mixed DNA sample was present on that firearm, including Ms Christensen's partner, Karl Brassat.[45] DNA found on a cigarette butt at the Burial site was also a potential, although not a strong, match for Mr Brassat ('quite a low figure').[46]

1. The circumstantial case against Mr Ronzitti was considerably weaker.
2. It was based principally on his association with Mr Christensen and Mr Egan, his presence with each of them at Bunnings on 11 November 2019 and 21 November 2019, respectively, and his car travelling to Hungry Jack's, Spearwood at around 2.39 am on 22 November 2019. In that regard, CCTV footage of the area surrounding 34 Bradbury Road showed that Mr Ronzitti's vehicle was at those premises from 6.27 pm on 21 November 2019 to 2.27 am on 22 November 2019. The vehicle was therefore at 34 Bradbury Road at the time of the burglary.
3. Unlike Mr Egan and Mr Christensen, there was no evidence of Mr Ronzitti's DNA linking him to the Burial site (and in Mr Christensen's case the HiLux Burn site and the vicinity of Claremont Firearms) nor the other circumstances relied upon in relation to the case against Mr Egan and Mr Christensen.
4. The State also sought to rely upon a lie Mr Ronzitti had told the police in an interview (to the effect that he did not know Mr Egan) as evidence of consciousness of guilt. The learned trial judge, however, ruled that the lie was not capable of being an admission and was only relevant to the jury's assessment of Mr Ronzitti's credibility in the interview (in otherwise denying involvement in the offences).[47]

1. As noted at the beginning of these reasons, neither Mr Egan nor Mr Ronzitti gave evidence, or adduced evidence, at trial (although police interviews with Mr Ronzitti were adduced as part of the State case).
2. Mr Christensen did elect to give evidence. Given the significance of his evidence to all of the grounds of appeal it is necessary to summarise it in some detail.

1. Mr Christensen gave his evidence over two days, on 9 and 10 June 2022, which were days 15 and 16 of the trial.
2. Mr Christensen gave evidence that in around October 2019 he was living at 34 Bradbury Road, which was his 'mum's house'. He gave evidence that Mr Ronzitti was living there at the time.[48]
3. Mr Christensen described Mr Egan as a good friend who he had known for about 10 years. He would see Mr Egan once or twice a week during the period surrounding October 2019.[49]
4. Mr Christensen shared a number of interests with Mr Ronzitti, including riding motorbikes and using drugs such as methamphetamine and cannabis. The main person from whom Mr Christensen would buy methamphetamine was a person by the name of Cameron Anderson, who lived nearby.[50]
5. When asked about the footage of him purchasing the Green 'Rhino' Cargo Box from Bunnings on 11 November 2019, Mr Christensen said that he had brought it for his friend, Cam (i.e. Mr Anderson), as a favour.[51] He said that he left it at Christina Christensen's house and that Mr Anderson had said that he would 'grab it off [him] after'.[52]
6. Mr Christensen said that on 21 November 2019 he was at home. He said that he went to sleep early and was asleep until he was woken in the early hours of the next morning ('about 1.30, 2 o'clock') by Mr Ronzitti. He gave evidence that Mr Ronzitti said that 'Cam's rang and he wants us to bring him that box'. Both men left in Mr Ronzitti's car and drove to Ms Christensen's house, stopping at Hungry Jack's on the way to pick up something to eat.[53]
7. When they arrived at Ms Christensen's house, Mr Christensen said that Mr Brassat was asleep in the carport out the front. Mr Christensen said that he asked Mr Brassat if 'he wanted to come for a cruise with us', which he did. Mr Christensen, Mr Ronzitti and Mr Brassat then left, with the 'crate', to meet with Mr Anderson at a location in Yangebup.[54]
8. When they arrived at the location, the group met with Mr Anderson who, after some discussion about the presence of Mr Brassat, asked the group to follow him to a location in the bushland in the Bibra Lake area. Mr Anderson was driving a Nissan Patrol. Mr Christensen said the group ultimately parked up on a track and exited their cars. His evidence continued:[55]

And when you got out of the car, did you see anything?‑‑‑I seen him [i.e. Mr Anderson], he went to the back of his car. He grabbed some shovels out and then we followed him like maybe 15, 20 metres into the bush on our left. And that's, yeah, where I seen this bunch of guns just on the floor.

Okay. Can you just describe to the jury what it is that you've seen, what - what is the visual situation? You mentioned guns. What are you looking at?‑‑‑I seen there was two crates that were pretty much full, black rectangle‑shape crates. I think they would have had about 30, 20 to 30 handguns in each one. There was a bag of rifles that was on the floor. There was plastic boxes and cardboard scattered everywhere. And yeah, that's about it.

1. Mr Christensen said that Mr Anderson told them to bury the guns. He said: [56]

And were you asked to do anything?‑‑‑Yeah. So after that I just - I asked him, 'Where do we start?' and he told us to empty - empty the crates into the box, the cargo box, and he said, 'Bury the cargo box right here,' and he stabbed the shovel in the ground where he wanted it buried. And then he said to put all the rifles - bury them behind a log that was there. And then he said all the rest of the stuff - he goes, 'Just dig a big hole and chuck it all in there.' And he said, 'Make sure all the plastic boxes are empty, yeah, before you chuck them away.'

And did you do anything in response to those instructions?‑‑‑Yeah, well, I started digging. I grabbed a shovel, [Karl] grabbed a shovel, and me and him started digging.

And how many holes did you dig, do you think, in ‑ ‑ ‑?‑‑‑I don't know. We dug heaps of holes. He told us to dig like a big hole, but we were trying to dig and it was like tree roots and it was a mission to dig, so we ended up just digging a whole bunch of holes everywhere.

1. Mr Christensen said that in the process of digging he needed 'to use the toilet' and substituted toilet paper for one of his socks.[57]
2. Mr Christensen said that Mr Anderson told him to check all the boxes to make sure that they were empty and to bring any guns to him in the morning if they found any. He said that after they had finished digging (at around 6.00 am), they found four handguns, which they took.[58]
3. After they left the Burial site, Mr Christensen said that they dropped Mr Brassat off in the Bibra Lake industrial area, visited Mr Christensen's father's house in Samson and then went to Mr Anderson's house. Mr Christensen said that he gave the four handguns to Mr Anderson and Mr Anderson gave them 'half a ball' of methamphetamine 'for doing it'. He said that Mr Anderson also told them that they could have all of the rifles at the Burial site, saying:[59]

'Just give it a day or two before you go down - back down there though' And he said, 'After you go back down there, anything - whatever's left down there youse can have.'

1. Mr Christensen and Mr Ronzitti then returned to 34 Bradbury Road.
2. Mr Christensen was asked whether he ever returned to the Burial site. He said that he had and gave the following evidence:[60]

And do you recall how long after your first attendance at the dig site this was?‑‑‑It was a couple of days. Yeah, I don't know the exact date.

If you can describe the circumstances of you returning to the dig site?‑‑‑Well, I wanted to show James [i.e. Mr Egan] what was down there because I told him about it. And I was hoping maybe that he could try sell some for me or I offered him one. So we just went to go have a look what was left.

And how did you get there? How did you travel?‑‑‑In Nick's ute.

So who was there at this point in time?‑‑‑Me ‑ ‑ ‑

The second - the second time that you were at the dig site?‑‑‑Me, Nick and James.

And when you've arrived, can you describe what you see when you arrive?‑‑‑So we - I opened up the container to see what was in there and it was just full of like holsters. When I opened up the container it - it - sand started fall - falling in, the hole started caving in. So we pulled it out of the hole and I decided to dig another hole for it and we chucked the holsters in the hole that was caving in and put it in another hole, yeah.

Okay. Now, you said something was caving in. What was that?‑‑‑That was the hole that the - the cargo box was first buried in.

So you removed it?‑‑‑Yeah.

And you said you chucked something into the old hole?‑‑‑Yeah, it was just all the empty holsters that were filling up the cargo box.

And who did that?‑‑‑Empty it?

Who - who chucked the stuff?‑‑‑James and Nick were emptying it, the holsters, and I was digging the new hole.

And when you opened the crate, the one(?) crate on this occasion, were its contents the same or different from when you last recall seeing on the first occasion at the dig site?‑‑‑It was different.

How so?‑‑‑There was - all - all the holsters that were in there, previously had guns in them.

And when you looked in it the second time?‑‑‑The holsters were just empty.

And did anyone take anything from the dig site on this second occasion?‑‑‑No, we didn't take anything.

And what time of the day roughly do you think this was that you attended on the second time at the dig site?‑‑‑Maybe 5 o'clock in the afternoon.

1. Mr Christensen then gave evidence of a practice that he had around that time of setting up 'burner phones' using mobile telephone parts and SIM cards. He also said that his inspection camera was used for looking inside engine blocks and that his balaclava was used for motor bike riding.[61]
2. Mr Christensen was asked about the hole in the brick wall depicted at [55] above. He said that it was a 'little door' he made to get into an old shed consisting of three panels without doors, which had been put straight up against the brick wall of the house. Mr Christensen said that the hole was cut into the wall using a nine‑inch grinder and that this was done at the 'end of 20[62], 2017'.62
3. Mr Christensen was shown the sketch found in his bedroom referred to at [54] above. He said that he knew nothing about it and that he did no[63]draw it.63
4. When shown the SIM card from the camera (referred to at [55] above) that bore his DNA, Mr Christensen said that it looked like the SIM cards he used to set up burner phones. He said that he had never seen the came[64] before.64
5. When asked about the set of keys found at the HiLux Burn site said to bear his DNA (referred to at [50] above), Mr Christensen said he had no recollection of ever seeing the key and did not know how his DNA [65]s on it.65
6. Mr Christensen denied stealing the Toyota HiLux, he denied conducting a burglary or stealing weapons from Claremont Firearms and he denied burning out a vehicle.[66]

1. Mr Egan's trial counsel briefly cross‑examined Mr Christensen. That cross‑examination was generally directed to adducing evidence from Mr Christensen that provided innocent explanations for a number of the circumstances relied upon by the State in its case against Mr Egan.
2. Mr Christensen said that Mr Egan did not use methamphetamine.[67]
3. He said that he had seen Mr Egan riding dirt bikes, including at night‑time. He said that, as the dirt bikes did not have lights, Mr Egan would 'just tape a torch to it'.[68]
4. Mr Christensen agreed that, when he attended the Burial site with Mr Egan a couple of days after the first occasion that he had been there, he saw Mr Egan touch holsters at the Burial site. When asked how many, he said 'I don't recall how many. He was shovelling them out into a hole'. Mr Christensen said that Mr Egan also handled a firearm. He said that the firearm was a pistol and that it was put back into the cargo box.[69]

1. Mr Christensen was also cross‑examined by Mr Ronzitti's trial counsel. That cross_examination had a distinctly different tone and directly attacked Mr Christensen's credibility.
2. Counsel commenced by asking Mr Christensen when it was that he had decided to give the explanation that he had been woken in the early hours of the morning by Mr Ronzitti to dispose of rubbish for Cameron Anderson. A short time later, the cross‑examination continued as follows:[70]

Now, when I asked you that first question, what I was getting at is that you've always known what had happened that night, what had happened in the early hours of that morning, haven't you?‑‑‑Yep.

You've always known that you were innocent of a crime that you've been charged with which you didn't commit?‑‑‑Yep.

Okay, you've always known that because you're charged with the burglary of the - of the Claremont Firearms and the theft of the - of the guns that were inside the vault?‑‑‑Yep.

You know that. You've been charged with the theft of the Toyota HiLux and its destruction by fire?‑‑‑Yep.

You know that?‑‑‑Yep.

And you've known that for, what, at least two years or more?‑‑‑Yep.

And you've been in custody all of that time, haven't you?‑‑‑Yep.

Yes. So did you ever think that perhaps you should tell the police or tell the DPP that you're innocent of those charges. Did you ever think about that?‑‑‑Well, I thought it would be most appropriate to wait until my day in court so I can speak about it.

Yes, but you could speak to them about it. You could tell the police what happened and say, 'It wasn't me'?‑‑‑Yeah.

Yes. You could have told the story that you've told today and you could have - could have ‑ ‑ ‑?‑‑‑I was - I was advised by my lawyer at the time that it's probably best I shouldn't speak to the police about it.

What, to tell them about your innocence?‑‑‑Yes.

So you're blaming your lawyer?‑‑‑No, my lawyer just told me, 'Don't make any comment to the police'.

Okay. Did - did you want to tell the police and tell the DPP that you were innocent of these charges?‑‑‑Yeah, of course.

Yes. But you just decided to wait your time, two and a half years, so you would get your day in court, is that it?‑‑‑Yep.

Well, I suggest to you, Mr Christensen, that the reason that this story didn't emerge sooner is because it's a recent invention on your part?‑‑‑No, that's not true.

Do you know what I mean by that? Just something you've made up, right, to sail your way through this trial?‑‑‑That's not true.

1. Counsel for Mr Ronzitti also cross‑examined Mr Christensen generally as to his evidence, including to the effect that there were parts of guns in his possession at his workshop. Mr Christensen agreed that he did have such items and that he was 'trying to make a gun'.[71] Mr Christensen was also generally cross‑examined to the effect that his account was improbable, including the risk of going out to the Burial site a couple of days after 21 November 2019 in circumstances in which the 'police would be right onto [it]'.[72]
2. It was put to Mr Christensen that the sketch found in his bedroom referred to at [54] above was a drawing of Claremon[73]Firearms73 and that the hole depicted at [55] above was a practice run to see how he could cut out the hole at the Clare[74]nt Firearms vault.74 Mr Christensen denied both propositions.
3. At the conclusion of the cross‑examination by Mr Ronzitti's trial counsel, the learned trial judge (of his own motion) gave the jury a direction in relation to the reference in the cross‑examination of Mr Christensen to the fact that he had been in custody since he was arrested. His Honour directed the jury that it should not treat that evidence as probative or as proof of anything in the trial, that it should not prejudice Mr Christensen and that they should not speculate as to why Mr Christensen had been in custody rather than on bail.[75]

1. Shortly after the commencement of the State's cross‑examination of Mr Christensen, counsel for Mr Christensen made an application to discharge the jury, on the basis of prejudice caused to Mr Christensen as a consequence of the cross‑examination of him by counsel for Mr Ronzitti, and in particular the cross‑examination reproduced at [88] above.
2. As the learned trial judge aptly described it, the prejudice identified by Mr Christensen was that, by that cross‑examination, 'the jury was invited to doubt the truthfulness of [Mr Christensen's] evidence on the basis that it was not merely a fabrication constructed over time, but that it can be demonstrated to be false by his failure to give his account earlier, when it would have been in his interests to do so'.[76] That suggestion, the learned trial judge found, 'was conveyed to the jury by the form and sequence of the questions that were asked'.[77]
3. The learned trial judge accepted that the cross‑examination was in that regard 'improper' and tended to infringe Mr Christensen's right to silence and create unfair prejudice. His Honour then turned to whether that prejudice could be overcome by a direction. In that regard his Honour concluded:[78]

The jury could expect a robust attack to be made on the credibility of Mr Christensen, in the interests of Mr Ronzitti. It is salient, in my view, that what I find to be impermissible questions going to Mr Christensen's failure to speak when he had a fundamental right not to, came from counsel for a co‑accused in the context of a necessary challenge to Mr Christensen's credibility.

It bears, I think, if only slightly on the question of remediation, perhaps it is no more than a nuance, but it is not without significance that the court is dealing with the question of whether unfair prejudice caused by a co‑accused in a cutthroat defence case can be remedied by a direction. I am not without some misgiving, but after due consideration of the issue, of the opinion that a jury can be given directions that would remedy the prejudice that I accept has likely been caused. And they can be given those directions without necessarily highlighting the point that was made by the impugned questions.

1. The learned trial judge, accordingly, dismissed the application to discharge the jury.

1. The State cross‑examined Mr Christensen, generally focussing on the improbability of a number of his explanations for the evidence that implicated him in the burglary, including as to the circumstances of his buying the cargo box and then leaving it at his aunt's house,[79] of his evidence as to Mr Anderson taking him to the Burial site at 2.30 am,[80] and, of his account of taking Mr Egan to the Burial site.[81] The prosecutor cross‑examined Mr Christensen in relation to the hole depicted at [55] above as to the improbability of rubble from cutting that hole still being present if it had been made in 201[82]or 2017.82
2. Towards the conclusion of the prosecutor's cross‑examination, it was put to Mr Christensen that the three accused were the ones who committed the burglary and buried the firearms and that he had burnt the Toyota HiLux, all of which he denied. The cross‑examination at that point continued:

You've come here, you've tried to give an explanation for the evidence against you?‑‑‑Yes.

You've tried to give an explanation for some of the evidence against Mr Egan. Isn't that right?‑‑‑Yes.

Well, you accept you've given an explanation for how his DNA could have gotten on the firearm?‑‑‑Yes.

How it could have gotten on the holster?‑‑‑Yes.

And as far as you're concerned, you don't see that the story you've told in court implicates Mr Ronzitti in the burglary, do you?‑‑‑No.

No. You don't see that, do you?‑‑‑No.

1. The learned trial judge commenced his directions to the jury by addressing the presumption of innocence and the onus and standard of proof.
2. At an early point in his directions, the learned trial judge addressed the need to guard against sympathy and prejudice. In that context his Honour referred to the cross‑examination of Mr Christensen by counsel for Mr Ronzitti reproduced at [88] above. Consistent with his Honour's earlier direction at [91] above, his Honour gave the f[83]lowing directions:83

I mentioned during the trial in relation to Mr Christensen's cross‑examination that his admission that he'd been in custody signifies nothing. It is not proof of anything in this trial. You cannot draw any inference against him from that fact.

You've also heard evidence from him of illicit drug use, drug dealing, setting up burner phones for illegal purposes, and even attempting to make a gun. And he said he took Mr Egan to the dig site because he thought that he could sell some guns to him or get him to sell guns for him.

1. Following a number of general directions as to the assessment of the witnesses' evidence, the learned trial judge turned to the right to silence and the accounts given by Mr Ronzitti (in his police interviews) and Mr Christensen (in his evidence).
2. In relation to Mr Ronzitti's denial of the offending in his police interviews, his Honour gave an orthodox Liberato direction:[84]

As to his denial of involvement, it may be that you accept what he told the police and in that event you would obviously acquit him. If you had difficulty accepting what he told the police but thought that it might be true, then you would acquit him because you would have a reasonable doubt.

1. Shortly after, the learned trial judge turned to Mr Christensen's evidence. Given its significance for ground 3 it is necessary to set it out in some detail:[85]

I turn now to Mr Christensen's election to give evidence. As a consequence of choosing to give evidence, Mr Christensen was cross‑examined by Mr Trowell and Ms Christian. His evidence is part of the body of evidence that you have to consider in this case. And his evidence, being given in court, can be used by you in considering the cases against Mr Egan and Mr Ronzitti.

Now, the fact that Mr Christensen chose to give evidence does not in any way detract from the principle that the onus is on the State to prove the charges against him beyond reasonable doubt and that he bears no onus of proof in terms of establishing his innocence.

The effect of his evidence is that he was not involved in planning or carrying out the burglary or stealing offences committed at Claremont Firearms, or stealing or destroying the Toyota HiLux, or assisting in any way in the commission of those offences, but that he did help another person to conceal a number of firearms and other items that he had reason to believe had been stolen.

On his account that occurred well after the Toyota HiLux was destroyed at Bibra Lake. That is, in time, probably on his evidence at about 3 am or later on the morning of 22 November, the HiLux being destroyed at about half past 1 according to the evidence of the DFES officers who gave evidence.

Now, I need to give you the same directions about Mr Christensen's evidence as I gave you with respect to Mr Ronzitti's answers in his police interviews. If you accepted Mr Christensen's evidence that he was not involved in the charged offences or thought that it might be true as a reasonable possibility, then you would obviously acquit him.

If you were not to accept his evidence and rejected as a reasonable possibility that it was true, it would not follow automatically that you would find him guilty of any offence as charged. Mr Christensen does not have to prove his innocence. That means that if you reject his evidence you should put it to the side as evidence that you do not accept. And the question would remain, 'Has the State, on the basis of evidence that I do accept, proved his guilt beyond reasonable doubt?'

Now, it's very important for you to remember that the question for you to consider is whether on the evidence before you, evidence that you do accept, the State has proved guilt beyond a reasonable doubt. So if Mr Christensen's evidence or any other evidence gives rise to a reasonable doubt with respect to any of the counts against him, then you cannot convict him of those counts. (emphasis added)

1. As is apparent, his Honour gave an orthodox Liberato direction in relation to Mr Christensen's evidence, including to the effect that if the jury thought that his evidence might reasonably be true, then it should find him not guilty.
2. The learned trial judge then turned to the cross‑examination by counsel for Mr Ronzitti reproduced at [88] above. His Honour directed the jury a[86]follows:86

Now, I want to say something briefly, members of the jury, in the context of Mr Christensen's evidence about the challenge that was made to his credibility by Mr Trowell on behalf of Mr Ronzitti.

Now Mr Christensen, you'll recall, was challenged quite vigorously by Mr Trowell on the basis that he had fabricated his account of being called to the scene, in fact asked to go to the scene or to at least meet Cameron Anderson by Mr Ronzitti in the early hours of 22 November.

It was put to him that he had made that story up to explain away evidence that was against him in the prosecution case and that he had the opportunity of doing so over a period of time since his arrest. He denied doing so. He maintained that it was Mr Ronzitti who woke him at about half past 1 or 2 o'clock on the morning of 22 November 2019 and asked him to go and assist Anderson.

Christensen said that he went along with Ronzitti and he thought that if he helped Anderson out, there would be some benefit to him, there would be some gear in it for him, meaning drugs. I think his evidence was that he eventually got half a ball of methylamphetamine from him which he said was one and a half grams or so, worth about $500.

Now it was put to him by Mr Trowell on behalf of Ronzitti that if his account were true, he would have given it earlier than in the trial, that is he would have told the police or the DPP his version of events.

Now those questions did not respect Mr Christensen's right to silence and you shouldn't draw any inference against him by reason of him having exercised his right of silence up to the time of giving evidence. His explanation, you will recall, was that he acted on legal advice. That advice was entirely proper. He wasn't obliged to talk to the police or the DPP before the trial and he was entitled to elect to give evidence once the prosecution case was closed. Now Mr Trowell properly did not challenge that explanation.

Now in this State, as a matter of law, an accused person is entitled to remain silent and no adverse inference can be drawn against that person for doing so. So I direct you to disregard the suggestion that his account should be rejected as false because he chose not to give it to anyone earlier. It would be wrong to reject his evidence on that basis.

On the other hand, it would be quite proper and it was quite proper for it to be suggested to him that he had an opportunity over a period of time to come up with an account that was tailored to the case against him. And that, as I understand it, was the main thrust of Mr Trowell's challenge, that he'd come up with a false account implication Ronzitti having had the benefit of seeing all the evidence against him.

1. His Honour then gave an 'accomplice warning' in relation to Mr Christensen's evidence:[87]

There is something that I need to say about Mr Christensen's evidence, members of the jury, as a matter of law because of what he said implicating Ronzitti, really as an accessory after the fact to the stealing offence committed at Claremont Firearms.

The three accused are charged together as accomplices. Now you do need to carefully scrutinise the evidence of Mr Christensen and that is because you may consider that he has a certain degree of self‑interest in giving his evidence. He may be seeking to justify or at least minimise his own conduct in this case and by doing so, he's implicated Ronzitti. His position is that he was not involved at all.

Basically it's Mr Christensen's position that Ronzitti woke him to tell him that Anderson had a job for them and that they subsequently, with [Karl Brassat], assisted Anderson by burying a number of handguns and rifles that were in Anderson's car, which was described as a Nissan Patrol.

By his evidence he admits that he thought the guns were stolen and that he, [Brassat] and Ronzitti, helped to hide them by burying them. That, you might well conclude, amounts to him being an accessory after the fact to an offence of stealing, but a less serious offence than those with which he and the others are charged.

Mr Ronzitti's position, consistent with his police interviews, is that he was not involved at all. So the effect of Christensen's evidence is to contradict Ronzitti and to implicate him, at least to the extent of being an accessory after the fact.

The fact that there is a degree of self‑interest in giving that evidence is not a reason of itself for you to reject the evidence of Christensen, but it is a reason for you to give it careful scrutiny and to compare it with what is known about the circumstances of the charged offences from other evidence, and what other facts are accepted by you as reliable.

You should consider whether there is any other evidence which confirms the evidence of Mr Christensen, and that is because you might not want to accept his evidence without seeing some independent evidence that confirms his account.

Now, in this case there is evidence that Mr Ronzitti's Rodeo motor vehicle was seen leaving 34 Bradbury Road at about 2.27 am on 22 November which would correspond with what Mr Christensen said occurred, and that vehicle was later seen at Hungry Jack's where they said that, or where Mr Christensen said that they went. But, of course, those are matters that were known to Mr Christensen.

At the burial site or dig site as I may describe it, there was a sock that was found to have Mr Christensen's DNA on it. That would place him at that site. And he gave an explanation of that. And then there was also DNA evidence that a profile matching [Karl Brassat] was found on a stolen firearm that was found at 10 Oxalis Way, a place that Christensen and Ronzitti went to on 23 November 2019, according to the covert operatives that carried out surveillance on that day.

What is put against Mr Christensen is that he has made up a narrative to fit the case against him, that he has, in effect, tailored his evidence in that regard. It is a matter for you to consider whether you accept the evidence of Christensen, but because of what I've told you, you must carefully scrutinise that evidence, particularly in view of its prejudicial effect on Ronzitti.

Now, it is clear from Mr Christensen's evidence that by the time he came to bury the guns in the Rhino cargo box, he knew that they had been stolen. He admitted as much in cross‑examination. By that admission you may find, and it is a matter for you, but not one that I think you would find difficult, that he admitted being an accessory after the fact to stealing, and by his evidence, as I've said, he implicated Ronzitti in that regard.

Being an accessory after the fact, in this case by dealing with property knowing that it was stolen, and in order to protect the thief, is an alternative offence to stealing. So I will, in due course, give you some directions about that.

In short, if, on the basis of Christensen's evidence, you were not satisfied that he and the others were actually involved in the commission of counts 1 to 4, you might well be satisfied that Christensen and Ronzitti assisted in the disposal of some of the stolen guns in a way that made them accessories after the fact, having done so to assist another person who had stolen or received them.

Obviously the State's case is that each accused is criminally responsible for the burglary, stealing and motor vehicle offences. It is only if you found them not guilty of the burglary and stealing offences on the basis that you accepted Christensen's account as truthful, that you would have reason to consider the alternative, but I'll come back to that later. (Emphasis added)

1. During a morning break, counsel for Mr Ronzitti submitted that, unlike the evidence that Mr Ronzitti's vehicle was seen leaving 34 Bradbury Road at 2.27 am on 22 November, the evidence of Mr Christensen's DNA at the Burial site could not amount to corroboration of Mr Christensen's evidence implicating Mr Ronzitti. Following the morning break, the learned trial judge returned to the issue:[88]

Members of the jury, I just want to return ever so briefly to what I said by way of a direction as to the scrutiny you should give to Mr Christensen's evidence and that it implicates Mr Ronzitti, and I was talking about the need to - well, suggesting you might look for some confirmation or corroboration in other evidence of Mr Christensen's account.

I mentioned the evidence of the Rodeo vehicle owned by Mr Ronzitti being seen to leave 34 Bradbury at 2.27 in the morning, and I also mentioned that there was a sock containing or carrying Mr Christensen's DNA found at the dig site. Of course that doesn't implicate Mr Ronzitti. There's no evidence at the dig site that corroborates Mr Christensen's account that Ronzitti was there as he said. I make that point by way of clarification.

1. The learned trial judge then summarised the State case and the defence case to the jury at some length. In the context of count 5, his Honour addressed the State's reliance on the conduct alleged to constitute count 5 as post‑offence conduct demonstrating a consciousness of guilt of the other charges. His Honour directed the jury that 'to be able to use that conduct as evidence of guilt of another offence, you would have to be satisfied beyond reasonable doubt that [Mr Egan] did commit count 5 and you wouldn't use that evidence unless you were so satisfied'.[89]
2. In the course of summarising the State case in relation to Mr Egan, the learned trial judge said the following, in relation to the DNA evidence:[90]

A DNA profile matching his was found on a Browning hand gun found in the Rhino cargo case at the dig site and on a Walther holster, and that evidence is said to be consistent with him being involved in the theft of the firearms.

Of course Mr Christensen's evidence gives a different explanation for the presence of those profiles. Christensen said that he saw Egan touch a firearm and a holster, but the State submits that Christensen's evidence in this regard should be rejected and you're asked to infer that Mr Egan's profile was found - his DNA was put on those items because he was involved in stealing them.

1. Towards the conclusion of his directions, the learned trial judge addressed the possibility of alternative verdicts to count 3, with respect to Mr Christensen and Mr Ronzitti. His Honour did not leave an alternative verdict in relation to Mr Egan. In that context, his Honour referred to the earlier warning he had given in relation to Mr Christensen's evidence. His Honour said:[91]

But the reason for leaving the alternative is that if the basis of your acquittal of Mr Christensen and Mr Ronzitti is that you accept Mr Christensen's account, then you would have to consider whether his evidence proves beyond reasonable doubt that he, knowing that the firearms were stolen by Anderson or had been received by him as stolen, dealt with those items in a way that was intended to assist Anderson avoid detection, that is by concealing the firearms. In other words, to enable the actual offender or offenders to get away with the crime.

It is not an automatic verdict. You might reject Christensen's evidence and other reasons to acquit him and Mr Ronzitti. In other words, there may be other reasons for acquittal than an acceptance of his evidence.

If you do not accept his evidence but you're nevertheless not satisfied beyond reasonable doubt that he committed the burglary, then you would return a verdict of not guilty to the alternative also. But he has admitted that he thought the guns that he was asked to bury were stolen and that with Ronzitti and [Karl Brassat] he buried them at Cameron Anderson's request in order to help him. So he's made those admissions.

And in relation to Mr Ronzitti, I have given you a warning about giving careful scrutiny to Mr Christensen's evidence to the extent that it implicates him on the basis that it may be seen to be given out of self‑interest to give an account that minimises his involvement and distances himself from the burglary but in a way that necessarily implicates Ronzitti.

He and Ronzitti are jointly charged on the indictment as accomplices and the court's experience is that an accomplice may have an interest in minimising their own involvement by giving evidence implicating another to a greater degree.

And I've told you to look in giving careful scrutiny to Mr Christensen's evidence [for evidence] that might corroborate or confirm it and I've mentioned the evidence that Ronzitti's Rodeo can be seen to have left Christensen's house in Bradbury Road at a time that would fit in with Mr Christensen's evidence that they went out about that time.

But of course you'll know that what's put against Mr Christensen is that he has tailored his evidence to what he knows about the State case, which is a criticism that's made by Mr Trowell and Ms Christian.

If after careful scrutiny you accept Mr Christensen's evidence and on that basis find that Ronzitti was not involved in the burglary but merely helped Anderson, then you will need to decide on the evidence whether you are satisfied beyond reasonable doubt of his guilt as an accessory after the fact.

On Christensen's account Ronzitti assisted by enlisting Christensen's help, and otherwise assisting at the dig site, although to a limited extent because of his arm injury, to conceal the firearms in order to help Anderson. You would have to be satisfied that he did so and that he did so knowing that an offence of stealing had been committed to assist the offender.

As to his knowledge. Obviously, his state of mind can only be proved by inference, to draw an inference of knowledge that the guns were stolen you would have to consider what he did and all the circumstances in which he came to be at the site that night. It's a matter for you, but just as Christensen admitted that he thought the firearms must have been stolen, you might think that Ronzitti must also have known that they were stolen in the circumstances.

Now, he has not given evidence in relation to this. By his answers to the police questions he has denied any involvement whatsoever, he said he was at home all night and he did not know what Christensen got up to at night. The evidence that his Rodeo motor vehicle left Christensen's house at 2.23 or thereabouts does not prove conclusively that he was driving it but there is evidence that Ronzitti used to drive Christensen around, and others, he pretty much characterised himself as a driver.

If the basis of your acquittals of Christensen and Ronzitti, or either of them, on count 3 is that you accept Christensen's evidence, then you will need to decide whether one or other of them, as the case may be, is guilty of being an accessory after the fact.

In relation to Mr Egan the situation is different. Mr Christensen's evidence is that he invited Egan to the site a day or so later and offered him a gun that Mr Egan touched but did not accept. Egan, according to Christensen, also with Ronzitti, emptied some holsters from a cargo box. But Christensen said that he then reburied the box and nothing was taken from the site.

So there is no evidence that Egan, if he knew, as you think he must have known that the guns and other items were stolen, did not do anything in relation to those items that would be capable of constituting assistance to the offender. So I'm not going to ask you for an alternative verdict as to whether he was an accessory after the fact as there's simply no evidence of that.

1. It may be observed, in this context, that the learned trial judge did not leave an alternative verdict in relation to Mr Egan because the charge of stealing (count 3) 'was completed when the guns were taken from the premises of Claremont Firearms'.[92]

(a) Mr Egan was found guilty of counts 1, 2 and 3 (stealing the Toyota Hilux, aggravated burglary and stealing firearms); and not guilty of counts 4 and 5 (destroying the Toyota HiLux and attempting to pervert the course of justice);

(b) Mr Christensen was found guilty of counts 1, 2, 3 and 4 (stealing the Toyota HiLux, aggravated burglary, stealing firearms and destroying the Toyota HiLux); and

(c) Mr Ronzitti was found not guilty of counts 1, 2, 3 and 4 but guilty of the alternative charge of accessory after the fact to the stealing in count 3.

Ground 1

The verdicts of guilty upon which the convictions are based should be set aside because, having regard to the evidence, they are unreasonable or cannot be supported. (Section 30(3)(a) of the Criminal Appeals Act 2004 (WA)).

Ground 2

The Learned Trial Judge erred in refusing the defence application to discharge the jury as a result of impermissible cross‑examination of the Accused Ashley Christensen by Senior Counsel for the co‑accused Ronzitti thereby giving rise to a miscarriage of justice. (Section 30(3)(b) and/or Section 30(3)(c) of the Criminal Appeals Act 2004 (WA)).

Particulars

(i) The co‑accused's Counsel cross‑examined Christensen in an impermissible way;

(ii) The undermining of Christensen's right to silence in the context of him being in custody was so significant that the Learned Trial Judge's directions were not capable of curing the prejudice that flowed which undermined his credibility;

(iii) The Applicant was significantly prejudiced as the evidence of Christensen was crucial and relied upon by the Applicant in his defence.

Ground 3

The Learned Trial Judge erred in law in his directions to the jury in relation to the evidence of the co‑accused Christensen thereby giving rise to a substantial miscarriage of justice (Section 30(3)(b) and/or sectionb30(3)(c) of the Criminal Appeals Act 2004 (WA)).

Particulars

(i) The directions requiring the jury to consider carefully the evidence of Christensen because 'he has a certain degree of self‑interest in giving his evidence' (Transcript at 1552 - 1553);

(ii) The directions requiring the jury to 'consider whether there is any other evidence which confirms the evidence of Mr. Christensen, and that is because you might not want to accept his evidence without seeing some independent evidence that confirms his account' (Transcript at 1553).

1. Ground 1, if successful, would result in a substituted verdict of acquittal, whereas success on grounds 2 or 3 would result in a retrial. It is, therefore, convenient to deal with the grounds of appeal in that order.
2. We turn to ground 1.

1. Mr Egan submitted that the various pieces of circumstantial evidence adduced against him could not amount to proof beyond reasonable doubt of his involvement in the crimes charged. He submitted that 'the evidence led by the State was simply not strong enough to allow the convictions to stand'.
2. In that context, Mr Egan submitted, consistent with the approach taken by the learned trial judge (see [110] above), that the burglary (and therefore the stealing) were 'complete at the time that the [stolen] items were loaded onto the[93]ehicle'.93 We accept that approach as being correct.
3. In his submissions in support of ground 1, Mr Egan made the following particular submissions in relation to a number of the circumstances relied upon by the State:[94]

(a) Mr Christensen's simple explanation as to how Mr Egan's DNA came to be on the holster and firearm should be accepted;

(b) Mr Egan's girth, as revealed in the video footage from Bunnings on 21 November 2019, would make it impossible for him to enter the hole cut into Claremont firearms;

(c) the State's contention that the items purchased by Mr Egan at Bunnings on 21 November 2019 were used in the burglary could not be sustained;

(d) there was no evidence of cutting equipment found at Mr Egan's home or in any place associated with him;

(e) the video recording of the search of Mr Egan's home tendered in evidence revealed that it was being renovated and that those renovations would have provided a source of the dust found on the torch at his house; and

(f) there was no DNA or fingerprints of Mr Egan at the scene of the burglary and the State's reliance on Mr Egan's body shape as indicative of his involvement in the reconnaissance at Pole Industries could not be relied upon with any degree of certainty.

1. The State submitted that the trial record did not require that the jury must necessarily have entertained a reasonable doubt as to Mr Egan's guilt on counts 1, 2 or 3. It submitted that the combined force of all of the evidence shows that Mr Egan aided the other two accused or others and that the jury, who had the advantage of seeing and hearing Mr Christensen testify, were entitled to reject his evidence that Mr Egan was not an offender.[95]

1. The principles governing a ground of appeal that a verdict is unreasonable or cannot be supported by the evidence are well known. Those principles have been outlined by this Court many times, most recently in Sturniolo v The State of Western Australia.[96] The principles are, relevantly and in summary, as follows:

(a) the appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether, as a matter of law, there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand;

(b) the question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty;

(c) that question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt;

(d) in answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses. The appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent on the evaluation of the witnesses in the witness box. The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness is, and remains, the province of the jury, and not of the appellate court;

(e) the question for the appeal court is whether, upon its examination of the record ‑ by reason of inconsistencies, discrepancies or other inadequacy, or in light of other evidence ‑ the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to guilt;

(f) a doubt experienced by an appeal court would be a doubt that a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt;

(g) if the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appeal court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appeal court must set aside the verdict; and

(h) the setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over an appeal court that has not seen or heard the witnesses called at trial.

1. In the present case, the State case against Mr Egan was circumstantial. The principles relating to criminal cases turning upon circumstantial evidence were restated in R v Baden‑Clay in the following terms:[97]

(a) when the case against an accused rests substantially upon circumstantial evidence, the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused;

(b) the jury can be satisfied of the accused's guilt only where guilt is not simply a rational inference but, rather, the only rational inference that the circumstances permit;

(c) for an inference to be reasonable, it must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding an accused person guilty if the inference of guilt is the only inference open to reasonable people on a consideration of all the facts in evidence;

(d) in considering a circumstantial case, all of the circumstances are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion.

1. As to this last point, as has been explained by the High Court many times, including in R v Hillier:[98]

Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal.

1. In applying these principles in the context of ground 1, this Court's function is therefore to determine for itself whether the evidence was sufficient in nature and quality to remove any doubt that the appellant was guilty of the offence.[99] The critical issue is 'whether the court's assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the jury can be taken to have had by reason of having seen and heard the evidence at trial'.[100] The task of this Court is to undertake its own independent assessment of the whole of the evidence to determine whether the only rational inference available on the evidence was as alleged by the State and, if not so satisfied, to determine whether the jury's satisfaction could be attributed to some identified advantage that the jury had over this Court.[101]
2. In this context, the jury's advantage will vary from case to case. As the High Court said in Dansie:[102]

The advantage that a trial judge might have had over a court of criminal appeal by reason of having seen and heard the evidence at trial will vary from case to case depending on the form in which the evidence was adduced at the trial and depending on the nature of the issues that arose at the trial. In a case such as the present, where the prosecution case was circumstantial, where the evidence adduced by the prosecution was largely uncontested and for the most part in the form of transcripts of unchallenged testimony, and where the appellant did not give evidence, the advantage must be slight.

1. While these observations were made in the context of an appeal from a trial by judge alone, they apply with equal force, in our view, to a trial by jury. That is, the nature of the evidence adduced at trial will necessarily affect the advantage that the jury will have over this Court in the assessment of the evidence as a whole.
2. As has already been observed, the prosecution case against Mr Egan was a circumstantial one. In addition, many, if not most, of the circumstances relied upon by the State were uncontested. Subject to one significant exception, in assessing whether those circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of Mr Egan, the jury's advantage over this Court, in having seen and heard the witnesses, must be regarded as small.
3. The significant exception, of course, concerns the evidence of Mr Christensen. While Mr Christensen did not give direct evidence as to Mr Egan's whereabouts at the time of the burglary, his evidence nevertheless provided a hypothesis consistent with Mr Egan's innocence. Mr Egan could not be convicted unless that hypothesis was excluded as a reasonable or rational one. Whether it was excluded necessarily depended upon an assessment of the credibility and reliability of Mr Christensen's evidence, in relation to which the jury's advantage is likely to carry more weight.

1. For the reasons that follow, in our view it was open to the jury acting reasonably, to be satisfied beyond reasonable doubt that Mr Egan was guilty of counts 1, 2 and 3 on the indictment. Our review of the trial record does not give rise to a reasonable doubt in our own minds as to Mr Egan's guilt.
2. At the outset, we observe that, in so concluding, we are satisfied that:

(a) the combined weight of all of the circumstantial evidence established that Mr Egan aided in the burglary on 21 November 2019; and

(b) the evidence of Mr Christensen does not give rise to a reasonable doubt in our minds as to Mr Egan's guilt.

1. These two matters are, of course, not unrelated. The circumstantial evidence, as a whole, is relevant to the assessment of the credibility and reliability of Mr Christensen's evidence and vice versa. Indeed, on the basis of the record alone, we would be inclined to reject Mr Christensen's evidence as lacking in credibility. Nevertheless, as we have noted above, in relation to the credibility and reliability of Mr Christensen's evidence, the jury had the additional advantage of seeing and hearing Mr Christensen give evidence. It was well open to the jury to conclude that Mr Christensen's evidence should be rejected in its entirety.
2. In setting out our reasons in more detail, we will do so by reference to the following subsidiary conclusions:

(a) the evidence readily proved, beyond reasonable doubt, that Claremont Firearms was the subject of an elaborate and sophisticated burglary on 21 November 2019. In particular the evidence established that the burglary was well‑planned and involved at least two persons acting together on 21 November 2019;

(b) the evidence comfortably established that Mr Christensen was involved in the burglary and that the Toyota HiLux was used in the course of, and subsequent to, the burglary. It was well open to the jury to reject Mr Christensen's evidence to the contrary;

(c) Mr Egan's DNA can only have been deposited on the handgun and the holster during, or after, the burglary. There was no reasonable inference open to the effect that his DNA could have been deposited on those items before 21 November 2019;

(d) it was open to the jury to reject Mr Christensen's explanation for Mr Egan's DNA being on the handgun and the holster and there was otherwise no rational inference open to the effect that his DNA was deposited on those items after the burglary. Mr Egan's DNA on the handgun and holster was strong circumstantial evidence that he aided in the burglary;

(e) the other circumstances, while looked at in isolation might yield an inference compatible with Mr Egan's innocence, in combination added to the strength of the inference that Mr Egan aided in the burglary. In particular, Mr Egan's attendance at Bunnings in the hours prior to the burglary to purchase items consistent with use in a burglary and his association with Mr Christensen and Mr Ronzitti, while potentially unremarkable when viewed in isolation, in light of all of the evidence (including the DNA evidence) excluded any reasonable hypothesis consistent with innocence; and

(f) it being properly open to the jury to reject Mr Christensen evidence concerning Mr Egan, and put it to one side, the united force of all of the circumstances put together established Mr Egan's guilt beyond reasonable doubt.

1. Before turning to those subsidiary conclusions, we confirm that, in assessing the sufficiency and quality of the evidence, we have not taken into account the evidence to the effect that Mr Egan had taken the hard drive containing CCTV footage belonging to his neighbour following the attendance by police at the neighbour's home. Mr Egan was found not guilty of count 5, which was based upon that evidence. As noted at [107] above, the learned trial judge directed the jury that they could not use that evidence as post‑offence conduct unless they were satisfied beyond reasonable doubt that Mr Egan was guilty of count 5. The State, accordingly, did not seek to rely upon that evidence in the appeal and so nor have we. It may be observed in passing, however, that it was arguably not necessary for the jury to be satisfied as to Mr Egan's guilt on count 5, before that evidence could form part of the circumstantial case on counts 1, 2, and 3. That is because, while it was necessary for the jury to be satisfied beyond reasonable doubt as to the elements of count 5, it may not be necessary, in a circumstantial case, for the jury to be satisfied beyond reasonable doubt as to a particular fact or circumstance (such as post‑offence conduct) before having regard to evidence of that circumstance (unless it is an indispensable intermedi[103] fact).103

1. There could be no doubt that Claremont Firearms was the subject of a burglary on 21 November 2019. It is also clear that the burglary required significant preparation and planning. This was not seriously in contention in the appeal and it is not necessary to summarise all of the evidence that supports that conclusion beyond the following matters.
2. It was necessary for the burglars to identify the location at which to cut into the concrete from the outside of the vault at Claremont Firearms. That would have required the acquisition of detailed knowledge of the site, including the surrounding location. The CCTV footage from Pole Industries from 24 and 31 October 2019 also supported the conclusion that the burglary was planned and required reconnaissance of the location. It also supported the involvement of at least two persons, given the presence of two persons on the CCTV footage.
3. Whoever carried out the burglary also had to have sufficient technical knowledge in the use of cutting equipment to cut the concrete, including knowledge of the need to use water as part of the cutting process (in this regard, a running hose was present at the scene of the burglary when it was first discovered).
4. The steps required to cut into the vault and then remove over 200 firearms also strongly support the conclusion that at least two persons were present at Claremont Firearms at the time of the burglary. In addition, the need to transport the large number of firearms supported the conclusion that the use of a motor vehicle was an integral part of the burglary.
5. It is also clear that the burglars must have completed the burglary and left the scene by 12.15 am on 22 November 2019 at the latest (i.e. when the manager arrived).
6. The primary focus of the trial was therefore, not whether there had been an elaborate burglary at Claremont Firearms on 21 November 2019, but whether Mr Egan and the other accused were parties to that burglary by having aided in its commission.

Mr Christensen's involvement in the burglary and the use of the Toyota HiLux

1. On the basis of the evidence as a whole, it was also well open to the jury to conclude that Mr Christensen was a party to the burglary. While that conclusion does not establish that Mr Egan was a party to the burglary, the evidence in relation to Mr Christensen's involvement in the burglary established a number of important facts in relation to the burglary itself, including the use of the Toyota HiLux in the burglary.
2. As we have noted above, the circumstantial case against Mr Christensen was strong. There was substantial evidence linking him to the Burial site, including his DNA on the sock found in close proximity to holes 4 and 4A and the green 'Rhino' Cargo box which, on his own admission, was the Cargo box he had purchased on 11 November 2019. Mr Christensen's DNA was also found on the SIM card in the camera pointing towards Claremont Firearms from Bellagio Homes. He was also, unquestionably, in the vicinity of the multiple crime scenes (Claremont Firearms, the Burial site and the HiLux Burn site) in the early hours of 22 November 2019, as established by the receipt from Hungry Jack's, Spearwood.
3. In the absence of some innocent explanation, these circumstances alone were sufficient to establish beyond reasonable doubt that Mr Christensen aided in the burglary.[104] It would be an extraordinary coincidence for Mr Christensen's DNA to be found in the proximity of Claremont Firearms and at the Burial site (together with a cargo box he had purchased) and that he would happen to be out in the early hours of the morning of the very night of the burglary of Claremont Firearms, if he were not involved in the burglary itself. Even more extraordinary still would be the coincidence that one of the firearms should then happen to be found at Mr Christensen's aunt's home, where he had attended on 23 November 2019.
4. Significantly, Mr Christensen's DNA at the HiLux Burn site also strongly supported the conclusion that the Toyota HiLux was used in the burglary. In that regard, there was already a body of circumstantial evidence supporting the use of the Toyota HiLux in the burglary. That evidence included:

(a) the fact that the vehicle had been stolen some time earlier (between a Friday and a Monday)[105] and was burnt in Beeliar Regional Park (the same park as the Burial site and not far from Claremont Firearms) on the night of the burglary; and

(b) the series of CCTV footage establishing the movement of a vehicle matching the Toyota HiLux in and around Claremont Firearms on the night of 21 November 2019, including such a vehicle travelling towards Beeliar Regional Park.[106]

1. That evidence, combined with the evidence of Mr Christensen's DNA at the HiLux Burn site, therefore provided a link between Mr Christensen, the burglary and the Toyota HiLux, strengthening the inference that the Toyota HiLux was used in the burglary, such that it was the only rational inference.
2. The innocent explanations proffered for most (but not all) of the circumstances pointing to Mr Christensen's guilt of the offences were those given by him in his evidence. As the summary of his evidence reveals Mr Christensen had an explanation for almost every circumstance, although he could offer nothing by way of explanation for his DNA being present on the set of keys found at the HiLux Burn site. Similarly, for some of the other circumstances, such as the sketch found in his bedroom, he simply professed ignorance.
3. It was, in our view, well open to the jury to reject Mr Christensen's 'innocent' explanations for each of the circumstances (and to do so beyond reasonable doubt). Even without the advantage of seeing and hearing Mr Christensen give evidence, the central narrative supporting his explanations for much of the evidence implicating him is so unlikely as to border on preposterous.
4. As we have concluded above, whoever carried out the burglary at Claremont Firearms engaged in significant planning, over an extended period of time, and the execution of the burglary required at least two people and the use of a vehicle. On Mr Christensen's account those people included unknown persons associated with Cameron Anderson, the putative coordinator or 'mastermind' of the burglary.
5. In our view, it beggars belief that Mr Anderson (and any other persons aiding the burglary that night), having carefully planned and executed the burglary without any involvement or knowledge on the part of Mr Christensen, and having left the scene of the burglary by 12.15 am at the latest, would (with the obvious risks of doing so):

(a) overlook the need to have taken the cargo box that they had asked Mr Christensen to unwittingly purchase on their behalf 10 days earlier;

(b) wake two people who had no involvement in the burglary (i.e. Mr Ronzitti and Mr Christensen) in the middle of the night, after the burglary had been completed, and take them and a random stranger (Mr Brassat) to the Burial site;

(c) have those people remain at that site for a number of hours for the sole purpose of burying the firearms stolen during the course of the burglary; and

(d) invite those people to return to the Burial site, at their discretion, to take any firearms that they wished.

1. Stranger still, in our view, is the notion that in the hour or two before this remarkable late night request made of Mr Christensen, a burning Toyota HiLux should be found in a different part of the Beeliar Regional Park, at which site Mr Christensen's DNA should coincidentally but inexplicably be found on a set of keys attached to a Toyota key fob.
2. It was in our view clearly open to the jury to reject Mr Christensen's account as lacking credibility. Having put that evidence aside, the jury would be correct to conclude, as we do, that the other evidence established beyond reasonable doubt that Mr Christensen aided in the burglary and that the Toyota HiLux was used in the course of the burglary.
3. Of course, that conclusion does not establish that Mr Egan aided in the burglary. Nevertheless, it does mean that the circumstantial case, as a whole, comfortably proved that the Toyota HiLux was used in the course of the burglary. If the jury could be satisfied that Mr Egan aided in the burglary, it could therefore be comfortably satisfied that his aiding included the use of the Toyota HiLux. It also meant that the jury could give greater weight to Mr Egan's association with Mr Christensen in its assessment of the circumstantial case against him.
4. Before turning to the circumstantial case linking Mr Egan to the burglary, it is appropriate that we address, at this point, what counsel for Mr Egan submitted in the appeal was a paradox: namely, that the jury convicted Mr Ronzitti of being an accessory after the fact of stealing the firearms and that 'the only evidence that the jury could have relied upon to convict Ronzitti of being an accessory after the fact was the evidence of Christensen'. Senior Counsel submitted that the result, on one view, was 'perverse because Christensen was not believed in respect of [Mr Egan] or himself but was believed in respect of Ronzitti'.[107]
5. In our view, it is neither necessary, nor appropriate, to attribute to the jury these conclusions in relation to the assessment of Mr Christensen's evidence. While it is correct to say that Mr Christensen did directly implicate Mr Ronzitti as an accessory after the fact in stealing the firearms, and the learned trial judge so directed the jury, there was, in our view, other evidence to explain why it was open to the jury to conclude that Mr Ronzitti was not involved in the burglary (or had a reasonable doubt as to that fact), but that he aided the burglars after the burglary had been committed.
6. For example, as we have concluded above, on the basis of the circumstantial evidence adduced by the State, the jury could be satisfied beyond reasonable doubt that Mr Christensen aided in the burglary and that the Toyota HiLux was used in the course of the burglary. At the same time, the jury could also be satisfied (as it clearly was, by convicting him of count 4) that it was Mr Christensen that set fire to the Toyota HiLux.
7. Significantly, given the time of the discovery of the burning vehicle, it is clear that the burglary and the destruction of the Toyota HiLux were all completed by 1.26 am at the latest. The evidence also established that Mr Ronzitti's car was present at 34 Bradbury Road from 6.27 pm on 21 November 2019 to 2.27 am on 22 November 2019 (that is during the entirety of the period of the burglary and the destruction of the Toyota Hilux). Mr Ronzitti's car was, however, observed, at Hungry Jack's, Spearwood at around 2.39 am on 22 November 2019. Given that it was his vehicle, and the fact that the Hungry Jack's receipt was found at Mr Christensen's home, it could safely be inferred that Mr Christensen and Mr Ronzitti were in the car at that time.
8. A clear inference to be drawn from these facts is that, after Mr Christensen had burnt the Toyota HiLux, Mr Ronzitti left 34 Bradbury Road in his vehicle to collect Mr Christensen (which would be necessary, given that he had destroyed the vehicle that he was driving). Accordingly, based on the State case, the jury could safely have concluded that Mr Ronzitti, while not present at the burglary, rendered assistance to Mr Christensen after the burglary had been committed. No doubt it would have been necessary for the jury to be satisfied that Mr Ronzitti did so with the necessary intent, knowing of the burglary (but without having done any act that aided in its commission). Nevertheless, the evidence as to the movement of Mr Ronzitti's car demonstrates that there was evidence, other than simply the evidence of Mr Christensen, upon which the jury could have been so satisfied. There is, accordingly, no need for this Court to speculate as to what parts of Mr Christensen's evidence the jury may have accepted, and what parts it rejected, in convicting Mr Ronzitti of the alternative charge.
9. We turn then to the evidence implicating Mr Egan in aiding in the burglary.

1. In our view, the presence of Mr Egan's DNA on the handgun and holster was strong circumstantial evidence that he aided in the burglary. It admitted of very few, if any, hypotheses consistent with his innocence.
2. First, the DNA evidence supported the conclusion that Mr Egan had handled, or otherwise come into close contact with, at least two of the items stolen in the burglary. Those items were unconnected, inasmuch as they were discovered in separate locations at the Burial site.
3. Secondly, there is no plausible basis upon which it could be inferred that Mr Egan's DNA could have been deposited on the handgun and holster before 21 November 2019; that is, before they were in the vault at Claremont Firearms. It could only have been deposited on the items during the course of, or after, the burglary.
4. Thirdly, the opportunity for Mr Egan's DNA to be deposited on the handgun and holster in the days after the burglary was very limited. The handgun and holster were discovered, hidden in a remote location, at midday on Monday 25 November 2019, following the burglary at around midnight on Friday 22 November 2019 (approximately 84 hours earlier). It is inconceivable that Mr Egan could have come into contact with them by chance. That is, to have come into contact with the handgun and holster at the Burial site, Mr Egan would need to have deliberately sought them out or have been taken to them at that location.
5. Fourthly, the only explanation, supported by evidence, for Mr Egan's DNA being deposited on the handgun and holster after the burglary, was that given by Mr Christensen, namely that, on an unspecified date after 22 November 2019, in the afternoon, Mr Christensen took Mr Egan to the Burial site, where Mr Egan handled a handgun and holster.
6. As with his evidence in relation to the events in the early morning of 22 November 2019, in our view, it was well open to the jury, having seen and heard Mr Christensen give evidence, to reject this evidence as lacking in credibility. According to Mr Christensen's account he was told by Mr Anderson that he could return to the Burial site in 'a day or two' (or 'a few days')[108] to take any firearms he wished and that Mr Christensen, at his own initiative, took Mr Egan there 'to try and sell some guns to him'.[109]
7. While this account was perhaps not as improbable as Mr Christensen's account of being woken in the early hours of 22 November 2019 to assist in burying the bounty of another person or persons' burglary, it was nevertheless, on its face, less than convincing. The jury were entitled to reject it, and put it to one side.
8. Fifthly, there was otherwise no evidence supporting the hypothesis that Mr Egan's DNA was deposited on the handgun and holster at the Burial site after the burglary. As we have said, unless a person or persons intentionally took him to the Burial site, there could have been no opportunity for Mr Egan to incidentally or accidentally come into contact with those items at the Burial site.
9. Which leaves the only remaining possible factual findings as being either:

(a) Mr Egan's DNA was deposited on the handgun and holster during the course of the burglary (that is, up to the time that the stolen items were loaded into the vehicle);[110] or

(b) Mr Egan's DNA was deposited on the handgun and holster between the time of the burglary and the point at which they were buried at the Burial site.

1. We will return to the relative likelihood of these possibilities in a moment. It is appropriate, first, to say something as to the significance of each possible factual finding for the assessment of the circumstantial case as a whole.
2. First, a finding that Mr Egan's DNA was deposited on the handgun and holster during the course of the burglary would, itself, be sufficient to support the conclusion beyond reasonable doubt that Mr Egan aided in the burglary. It is an inference that is only consistent with guilt. It is inconceivable that a person who handled, or otherwise came into close contact with, the handgun and holster in the course of the burglary would not have done so while aiding the burglary with the intention to do so.
3. Alternatively, while a finding that Mr Egan's DNA was deposited on the handgun and holster between the time of the burglary and the point at which they were buried at the Burial site might reasonably support an inference consistent with innocence, it would not necessarily do so. That is because, while such a finding would not establish that Mr Egan handled, or otherwise came into close contact with, the handgun and holster in the course of the burglary it would nevertheless be circumstantial evidence that Mr Egan had sufficient knowledge of, and connection with, the burglary around the time of its commission, for him to come into contact with its fruits immediately afterwards. That evidence, in combination with other evidence that Mr Egan aided in the burglary, prior to its commission (for example, by purchasing items for use in the burglary), would be capable of supporting an inference of guilt. Whether that would ultimately support an inference of guilt as the only reasonable inference would, therefore, depend upon an assessment of the evidence as a whole.
4. Put another way, whether the possibility that Mr Egan's DNA was deposited on the handgun and holster between the burglary and the Burial site would support a reasonable inference consistent with innocence (and therefore require an acquittal) would depend upon an assessment of the evidence as a whole and not on a piecemeal consideration of the DNA evidence in isolation.
5. For these reasons, despite a suggestion made by Mr Egan in the course of the appeal (albeit that there was no ground of appeal to this effect),[111] satisfaction that Mr Egan's DNA was deposited on the handgun and holster prior to the completion of the burglary was not an indispensable intermediate fact in this case ('a link‑in‑the‑chain‑type case').[112]
6. As to the relative likelihood that Mr Egan's DNA was deposited on the handgun and holster during the course of the burglary as opposed to the period between the burglary and those items being buried at the Burial site, prima facie, in our view it is far more likely that it occurred during the burglary.
7. For Mr Egan's DNA to have been deposited on the handgun and holster in the hours after the burglary (particularly without Mr Egan having been involved in aiding in the preparation for the burglary) would have required a sequence of events similar to that recounted by Mr Christensen in his evidence; namely that, for some unknown reason, Mr Egan became unexpectedly drawn into the aftermath of a burglary in relation to which he otherwise had no involvement. As in the case of Mr Christensen's account, such an inference would have to contend with the improbability of the actual burglars involving a stranger to the burglary, in the middle of the night and for no apparent logical reason, with all the attendant risk of detection that such involvement would create. For that reason, the inference that Mr Egan's DNA was deposited on the handgun and holster in the hours after the burglary was quite unlikely.
8. For Mr Egan's DNA to be deposited on the handgun and holster in the course of the burglary, however, involves no such improbability; it merely involves the eventuality that any precautions that may have been taken to prevent trace evidence containing DNA being left on the fruits of the burglary were ineffective in relation to two items. Accordingly, the inference that Mr Egan's DNA was deposited on the handgun and holster in the course of the burglary, and not at some other time, was, in all the circumstances, the simplest, most natural and most likely inference.
9. This does not necessarily mean, of course, that, considered in isolation, the inference that Mr Egan's DNA was deposited on the handgun and holster in the course of the burglary was the only reasonable inference. While an argument could be made to that effect, it is not necessary for us to reach a concluded view in that regard. That is because, as the principles make clear, the DNA evidence is not to be considered in isolation.
10. To reiterate, as Gibbs CJ and Mason J said in Chamberlain v The Queen [No 2]:[113]

At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness 'separately in, so to speak, a hermetically sealed compartment'; they should consider the accumulation of the evidence: cf Weeder v The Queen.

Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider 'the weight which is to be given to the united force of all the circumstances put together': per Lord Cairns, in Belhaven and Stenton Peerage, cited in Reg v Van Beelen; and see Thomas v The Queen and cases there cited.

1. As these principles recognise, the combination of two or more individual circumstances can produce a synergistic effect on the weight of the circumstances as a whole. That is, the weight that can be accorded to one circumstance may be increased by the presence of another circumstance (and vice versa), such that the weight of the circumstances combined is greater than the combined weight of the individual circumstances. And, moreover, that effect may be multiplied as each additional circumstance is added to the totality of the circumstances. In such a case, the effect of the whole may be significantly greater than the sum of its parts. Or, as J R R Tolkien once described the effect of the threads of a narrative tapestry:[114]

It is indeed easier to unravel a single thread - an incident, a name, a motive - than to trace the history of any picture defined by many threads. For with the picture in the tapestry a new element has come in: the picture is greater than, and not explained by, the sum of the component threads.

1. It is necessary, therefore, to consider the circumstance of Mr Egan's DNA being found on the handgun and holster (which is, as we have said, already strong circumstantial evidence of Mr Egan's guilt), in combination with all the other circumstances established by the evidence.

The combined effect of the circumstantial evidence

1. In our assessment, and putting to one side (as the jury were clearly entitled to do) Mr Christensen's evidence, the weight to be given to the united force of all the circumstances established beyond reasonable doubt that Mr Egan knowingly aided in the burglary (and therefore the stealing - by use - of the Toyota HiLux and the stealing of the firearms). In particular, the combined effect of all of the other circumstances, in our view, are sufficient to remove any doubt in our minds as to whether Mr Egan's DNA was deposited on the handgun and holster in the course of the burglary.
2. In so concluding we recognise that a number of the individual circumstances added very little weight to the united force of the circumstances put together.
3. For example, it would be very difficult to conclude that one of the persons depicted in the CCTV footage from Pole Industries from 24 and 31 October 2019 was Mr Egan. Nevertheless, as we have observed above, that evidence does support the conclusion that the burglary was planned, required reconnaissance of the location and involved at least two persons. It could also be said of that CCTV footage that the appearance of the two persons in the footage was not inconsistent with one of them being Mr Egan (that is, it did not positively exclude Mr Egan as one of the reconnoitrers).
4. Similarly, the 'snake' (or inspection) camera found at Mr Egan's former partner's house, in our view added very little (if anything) to the strength of the circumstantial case. There was no evidence that it (or any 'snake' camera) had in fact been used in the planning of the burglary and, significantly, it is apparent from the carry case in which the camera was found, that the camera was not new.[115] There was, therefore, no evidence upon which it could be inferred that the 'snake' camera was acquired by Mr Egan at a time proximate to the burglary and, arguably, there was evidence to the contrary.
5. Likewise, the evidence of Mr Egan's qualifications in handling construction material and using construction tools and equipment, while carrying more weight than the 'snake' camera, was nevertheless a circumstance that added little weight to the circumstances as a whole. While the evidence of those qualifications was capable of bearing on the assessment of Mr Egan's guilt (and so was relevant and admissible), that evidence does not add a great deal to the united force of the circumstances.
6. In this context, it might also be observed that circumstances such as the 'snake' camera and Mr Egan's qualifications, are likely to have a more limited 'synergistic' effect on the other circumstances, because they are circumstances which, prima facie, stand alone and do not 'interact' with other circumstances.
7. By contrast, a number of the other circumstances do clearly exhibit that synergistic quality; that is, their presence strengthens and increases the weight to be accorded to the other circumstances.
8. It is not necessary for us to set out our views as to each of the circumstances relied upon by the State. In our view, the combined effect of the following circumstances dispel any doubt in our minds as to Mr Egan's guilt of aiding in the burglary:

(a) the presence of Mr Egan's DNA on the handgun and holster (which we have already addressed in detail above);

(b) Mr Egan's association with Mr Christensen and Mr Ronzitti, particularly in the weeks before the burglary; and

(c) the circumstances associated with Mr Egan's attendance at Bunnings, Bibra Lake, on 21 November 2019.

1. Mr Egan's association with each of Mr Christensen and Mr Ronzitti, considered in isolation, was not strong evidence that Mr Egan had aided in the burglary. As Mr Egan submitted, 'just because they were friends, or associated together ... did not make [Mr Egan] guilty'.[116]
2. Nevertheless, considered in the context of the other evidence, Mr Egan's association with the other accused, particularly Mr Christensen, added considerable weight to the overall inference of guilt. As we have concluded above, once his evidence was rejected and put aside (as the jury were clearly entitled to do) the circumstantial evidence comfortably established that Mr Christensen was an active participant in the burglary and that the HiLux was used in the burglary. In those circumstances, Mr Egan's association with a person actively involved in the burglary greatly reduced the prospect that there might be some innocent explanation for his DNA being found on a handgun and holster stolen in the burglary. In addition, Mr Egan's association with Mr Ronzitti, who the evidence established was at least present with Mr Christensen in the hours after the burglary, could only serve to strengthen the inference from Mr Egan's DNA on the handgun and holster that he was knowingly involved in the burglary.
3. In that regard, considered in the context of the other circumstantial evidence, the evidence of Mr Egan's visit to Bunnings, Bibra Lake on 21 November 2019 takes on a particular significance. While it is true to say that there was no evidence directly linking the items purchased by Mr Egan on that occasion (i.e. gloves, a torch and gaffer tape) to the burglary, they were nevertheless the kind of items that could be expected to be useful in a sophisticated burglary such as that carried out at Claremont Firearms.
4. In that context, it is one thing to find that Mr Egan purchased items that could be expected to be useful in a sophisticated burglary. And it is another thing to find that he purchased items from a store only hours before such a burglary was committed. And another thing that the burglary was committed in the general vicinity of the store. And another thing to find that he was accompanied by a person who, in the hours immediately after the burglary, was present with, and driving, another person who was a party to that burglary.
5. It is an altogether different (and wholly implausible) thing to conclude that it could be a coincidence that, on 21 November 2019, Mr Egan purchased items useful in a sophisticated burglary and that he did so in the hours prior to such a burglary and that he did so in the general location of the burglary and that he did so with a person who hours later was driving one of the burglars and that he was associated with that burglar and that his DNA found its way onto a handgun and holster that were stolen in the burglary.
6. In our view it is simply not open to conclude that the combined effect of all of those circumstances was consistent with a reasonable inference that Mr Egan was not guilty of the burglary. On the contrary, the combined effect of those circumstances was consistent with only one reasonable inference: that Mr Egan knowingly aided in the burglary on 21 November 2019.
7. It was open to the jury acting reasonably, to reject Mr Christensen's evidence bearing upon Mr Egan's role (or absence thereof) in the burglary and to be satisfied beyond reasonable doubt that Mr Egan was guilty of counts 1, 2 and 3 on the indictment. Having regard to the jury's advantage in seeing and hearing the witnesses give their evidence, we are not left with a reasonable doubt in our own minds as to Mr Egan's guilt. On the contrary, we are satisfied that the jury's verdicts of guilty on counts 1, 2 and 3 were well open to it. Those verdicts were not unreasonable or unsupported by the evidence.
8. While we would grant leave in relation to ground 1, the ground has not been made out.

1. Ground 2 contends that the learned trial judge erred in refusing the defence application to discharge the jury as a result of the cross‑examination of Mr Christensen by Senior Counsel for Mr Ronzitti. In particular, ground 2 relies upon the cross‑examination reproduced at [88] above, to the effect that Mr Christensen's failure to give his account at an earlier stage, when it would have been in his interests to do so, demonstrated that his evidence was false.
2. Mr Egan submitted that this part of the cross‑examination undermined Mr Christensen's right to silence by seeking to draw an adverse inference from his failure to answer questions or provide information to police or prosecutors at an earlier time.[117] That cross‑examination, Mr Egan submitted, was contrary to the principles established by the High Court in Petty and Maiden v The Queen[118] and applied in decisions of this Court such as Gray v The State of Western Australia.[119]
3. Mr Egan submitted that, while the 'impermissible' cross‑examination related to Mr Christensen's right to silence, it nevertheless prejudiced Mr Egan given the significance of Mr Christensen's evidence to Mr Egan's defence.[120] In that regard, Mr Egan relied upon the High Court's decision in Awad v The Queen.[121] In Awad v The Queen, the trial judge misdirected the jury in relation to the assessment of the evidence of one co‑accused (Mr Tambakakis) who had given evidence central to the defence of the other co‑accused who had not given evidence (Mr Awad). The Court held that as 'the prohibited direction had the capacity to deflect the jury from their task' in relation to the trials of both Mr Tambakakis and Mr Awad, each had suffered a substantial miscarriage of justice.[122]
4. While ground 2 was, in terms, directed to the learned trial judge's decision not to discharge the jury, at the hearing of the appeal Senior Counsel for Mr Egan accepted that, for the purposes of the ground of appeal, the principal focus was on whether the directions that the learned trial judge gave at the end of the trial were sufficient to negative any prejudice that would otherwise arise from the cross‑examination by counsel for Mr Ronzitti. Counsel submitted that no direction could cure that prejudice.[123]
5. The State, in its submissions, accepted that the principle in Awad v The Queen applied in the present case and accepted that a misdirection which bears upon the jury's assessment of the credibility of an accused's testimony may also result in a miscarriage in the case of a co‑accused where, as in the present case, the co‑accused's case relied upon the testimony of the accused who gave evidence.[124]
6. The State, however, did not accept that the cross‑examination of Mr Christensen was impermissible.[125] It submitted that the principles arising from Petty and Maiden and Gray apply to prosecuting counsel, rather than cross‑examination by counsel for a co‑accused.[126] The State submitted that it was necessary to have regard to the 'architecture of a joint trial' and the fact that, in a joint trial relevant evidence might be led by the prosecution of an accused which is prejudicial to a co‑accused.[127] The State also referred to circumstances in which an accused is permitted to cross‑examine a co‑accused on an out‑of‑court prior inconsistent statement despite the fact that the statement was inadmissible as part of the prosecution case[128] and the discretion to exclude prosecution evidence on the grounds of unfairness.[129]
7. The State submitted, in any event, that the learned trial judge's directions negated any perceptible risk of a miscarriage of justice.[130] Those directions, the State submitted, addressed the adverse inference that might be drawn from the impugned cross‑examination in clear and firm terms which were consistent with a similar direction approved by this Court in Gray.[131]

1. For the reasons that follow, while we would grant leave to appeal in relation to ground 2, we would not uphold the ground.
2. We have reached that conclusion for the reason that, in our view, the directions given by the learned trial judge neutralised any suggestion that the jury could draw an adverse inference from Mr Christensen's invocation of the right to silence. In our view, his Honour's directions removed any perceptible risk of a miscarriage of justice arising from that cross‑examination.
3. In those circumstances, it is not strictly necessary to determine the question of whether the cross‑examination of Mr Christensen by Senior Counsel for Mr Ronzitti was impermissible and whether the principles in Petty and Maiden and Gray apply to the conduct of defence counsel. Nevertheless, as that question is relevant to whether a direction by the trial judge was required in this case (and the form of any such direction), it is appropriate that we address it.

Was the cross examination by Mr Ronzitti's counsel impermissible?

1. In our view, the cross‑examination of Mr Christensen by Senior Counsel for Mr Ronzitti did impermissibly infringe Mr Christensen's right to silence.
2. Insofar as the cross‑examination suggested that Mr Christensen's evidence was a recent invention on his part which he had developed over time, it was not objectionable. As this Court observed in Gray:[132]

There is a distinction between a suggestion of fabrication of details over a period of time, on the one hand, and, on the other, one to the effect that if the defence raised was true it would have been made to the police from the outset. The latter falls foul of the statements of principle made in [Petty and Maiden], while the former does not, because it is, in substance, an allegation of fabrication developed over a period of time and is not an invitation to the jury to draw an adverse inference about the accused's silence: McKerlie v The State of Western Australia [No 2] [2006] WASCA 274 [4] (Steytler P).

1. The cross‑examination reproduced at [88] above however, went further. It invited the jury to impermissibly reason that Mr Christensen's previous silence provided a basis for inferring that his evidence was a new invention or was suspect or unacceptable. Such an invitation was contrary to Mr Christensen's right to silence and was impermissible.
2. For the reasons that follow, in our view, the fact that reasoning to that effect was invited by questions from counsel for Mr Christensen's co‑accused, rather than the prosecutor, did not render it 'permissible'.
3. The starting point, in this regard is the High Court's decision in Petty and Maiden, in which Mason CJ, Deane, Toohey and McHugh JJ explained the right to silence in the following terms:[133]

A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played. That is a fundamental rule of the common law which, subject to some specific statutory modifications, is applied in the administration of the criminal law in this country. An incident of that right of silence is that no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information. To draw such an adverse inference would be to erode the right of silence or to render it valueless. ...

That incident of the right of silence means that, in a criminal trial, it should not be suggested, either by evidence led by the Crown or by questions asked or comments made by the trial judge or the Crown Prosecutor, that an accused's exercise of the right of silence may provide a basis for inferring a consciousness of guilt. Thus, to take an example, the Crown should not lead evidence that, when charged, the accused made no reply. Nor should it be suggested that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable.

1. In the particular circumstances of Petty and Maiden, the court ultimately concluded that the right to silence of the appellant, Mr Maiden, had not been infringed because he had in fact given an account of the events in a record of interview and to a prosecution witness prior to trial that was different to the account which he gave at trial. That different account had been maintained at the time of committal proceedings. In those circumstances, it was open to the prosecution to adduce evidence from the relevant prosecution witness that Mr Maiden's account at trial had not been put to him at the committal proceedings.
2. Importantly, however, in that context, Mason CJ, Deane, Toohey and McHugh JJ said:[134]

It should be stressed that nothing in what is written above should be understood as suggesting that evidence of a failure to raise some defence or matter of explanation at committal proceedings is ordinarily admissible at the trial as a basis for drawing some adverse inference against the accused. Evidence of a failure, on the committal hearing, to ask a question, make a submission, or advert to a claimed defence is not, of itself, so admissible. The right to remain silent applies to the conduct of a committal proceeding and silence maintained provides no basis for any inference against an accused.

1. It is correct, as the State submitted, that the particular circumstances in both Petty and Maiden and Gray concerned the conduct of prosecuting counsel. Similarly, the examples given by Mason CJ, Deane, Toohey and McHugh JJ in the second paragraph reproduced at [207] above specifically refer to questions or comments by the Crown, although they also referred to comments by the trial judge. Nevertheless, the incident of the 'fundamental rule' expressed in the first paragraph reproduced at [207] above and the statements of principle reproduced at [209] above were not expressed to be confined to those circumstances. Nor, in our view, should they be so understood.
2. It is clear, in our view, from the nature of the 'fundamental rule', and the role that the right to silence plays in the administration of criminal justice, that - fundamentally - what they prohibit is a form of reasoning; namely, reasoning to an adverse inference against an accused person by reason of his or her failure to answer questions or to provide information. As with the closely related common law privilege against self‑incrimination, the right to silence (as described in Petty and Maiden) is not merely a rule of evidence applicable in judicial proceedings, but a deeply ingrained common law right.[135] It is because of the prohibition on any form of reasoning adversely from the exercise of an accused's right to silence that evidence of the failure to advert to a defence is not admissible; not vice versa.
3. So understood, in our view, the prohibition on the form of reasoning embodied in the right to silence remains operative in every case regardless of how, or by whom, the prohibited reasoning is invited. As the statement of principle in Petty and Maiden expressly states, the impermissible suggestion that an accused's exercise of the right to silence may provide a basis for inferring a consciousness of guilt might arise from the State's case, by questions in cross‑examination or by comments to the jury, including comments by the trial judge. That form of reasoning does not, in our view, cease to be prohibited because it is suggested by questions or comments from another source, in this case from defence counsel.
4. In the present case, for example, the invitation to engage in prohibited reasoning arose from questions asked by Mr Ronzitti's counsel in the course of cross‑examination. The proposition that such an invitation was 'permissible' may be tested in this way. Had Mr Christensen elected not to give evidence, could counsel for Mr Ronzitti or Mr Egan have submitted to the jury that it could infer a consciousness of guilt from that election? The State's position would appear to suggest that, arguably, they could. Indeed, the State submitted that 'Ronzitti's counsel was, arguably, entitled to make adverse comment about the failure of [Mr Egan] to give evidence'.[136] In that context, the State referred to the fact that s 8(1)(c) of the Evidence Act 1903 (WA), which prohibits the prosecutor from commenting on the failure of an accused to give evidence, does not by its terms apply to a co‑accused.
5. Far from supporting its case, in our view, this submission reveals the flaw in the State's approach to this issue. Section 8(1)(c) of the Evidence Act equally does not prohibit comment by the trial judge in relation to the accused's right to silence. Nevertheless, this Court (and the Court of Criminal Appeal before it) has confirmed that the prohibition in the common law does.[137] In the same way, in our view, for counsel for an accused to invite, by way of comment to the jury, that it should draw an adverse inference from the failure of a co‑accused to give evidence, would be akin to counsel inviting the jury to reverse the onus of proof or apply a different standard of proof to the case against the co‑accused. It would simply be a misstatement of the law. In such a case, the trial judge would be duty bound to correct that misstatement of the law. Otherwise, the jury would be distracted from its task by engaging in an impermissible form of reasoning. There is no reason to treat the right to silence prior to trial as being in some different category.
6. In this context, the invitation for the jury to engage in prohibited reasoning in the present case is to be distinguished from the other circumstances, referred to by the State in submissions, where an accused is permitted to adduce evidence against, or cross‑examine, a co‑accused in circumstances in which that evidence could not be adduced, or the cross‑examination so conducted, by the prosecutor. Properly understood, those other circumstances concern the reception of relevant evidence which does not involve the use of a prohibited form of reasoning.
7. For example, as the State submitted, in Kazemi, the Court of Criminal Appeal held that an accused is permitted to cross‑examine a co‑accused on an out‑of‑court prior inconsistent statement despite the fact that the statement was inadmissible as part of the prosecution case.[138] Such a statement might, for example, be inadmissible as part of the prosecution case because it was involuntary (and so not within an exception to the hearsay rule) or otherwise excluded as a matter of discretion because of the circumstances in which it was obtained. Nevertheless, cross‑examination on the statement by a co‑accused is for a different purpose; namely impugning the credit of the co‑accused as a witness. It may therefore be relevant evidence for that purpose; and may be so used by the jury. Even in such a case, however, the out‑of‑court statement, if not adopted, would not become an admission against the co‑accused.
8. As the Court in Kazemi emphasised, however, cross examination of a co‑accused, including on an inconsistent statement, remains bounded by the requirement of relevance.[139] So understood, it does not allow for, or contemplate, an impermissible form of reasoning on the part of the jury.
9. Similarly, in Winning v The Queen,[140] the Court of Criminal Appeal, following the decision of the Privy Council in Lowery v The Queen,[141] held that evidence of propensity or character, which could not be adduced by the Crown, could nevertheless be adduced by one co‑accused in relation to another. That is because whether it is sought to be adduced by the prosecution or a co‑accused, propensity or character evidence may be logically probative of the facts in issue.[142] When sought to be adduced by the prosecution however, whether at common law or pursuant to statutory provisions, the probative force of propensity evidence must be weighed against its prejudicial effect. In the case of evidence adduced by a co‑accused, however, no such weighting is involved: 'considerations of undue prejudice cannot arise in situations in which one accused seeks to lead evidence against a co‑accused which is properly characterised as logically probative'.[143]
10. Again, however, if the conditions for admissibility are met, the receipt of such evidence does not involve, or contemplate, any impermissible form of reasoning. Indeed, in such a case, directions may still be necessary to ensure that only permissible forms of reasoning are adopted and, if no directions could be adequate to ensure that a jury could be expected to perform ''the remarkable mental feats required of them', the appropriate course is to direct a separate trial of the co‑accused'.[144]
11. It may therefore be readily recognised that counsel for an accused will have more leeway in cross‑examining, or adducing evidence against, a co‑accused than would be permitted of the prosecution, particularly in adducing evidence as part of its case. Indeed there were other aspects of the cross‑examination of Mr Christensen by counsel for Mr Ronzitti (such as the fact that he had parts of guns in his possession) which the State could not adduce, but which were permitted by the learned trial judge (over objection) as those questions went to Mr Christensen's credit.[145]
12. Nevertheless, that leeway does not extend to evidence whose only purpose would be to support an impermissible form of reasoning. And, in a case such as the present, there is no permissible form of reasoning to the effect that the silence of an accused may be treated as a basis for inferring that his or her evidence is a new invention or is rendered suspect or unacceptable.
13. For these reasons, in our view, the cross‑examination of Mr Christensen by Senior Counsel for Mr Ronzitti impermissibly infringed Mr Christensen's right to silence.

Did the cross‑examination result in a miscarriage of justice?

1. The real issue, in relation to ground 2, is whether, faced with the potential prejudice from the cross‑examination, the learned trial judge should have discharged the jury or whether the prejudicial effect of the cross‑examination could be cured by appropriate directions.
2. The principles to be applied in those circumstances are those summarised by this Court in Kitto. While made in the context of the inadvertent reception of evidence of a prior conviction, those principles apply equally to a case such as the present. The Court in Kitto said:[146]

The inadvertent reception of inadmissible evidence of a prior conviction, which is plainly prejudicial to the accused, does not, in and of itself, necessarily require the trial judge to discharge the jury on the basis that a fair trial is no longer possible. In R v Glennon, Mason CJ and Toohey J said:

'Reception of inadmissible evidence of a prior conviction has been said to offend against one of the most deeply rooted and jealously guarded principles of our criminal law. And the wrongful reception or transmission of such evidence by or to the jury is calculated to set the prospect of a fair trial at risk. It is then for the trial judge to decide whether it is necessary to discharge the jury in the interests of securing a fair trial and, if the trial proceeds and results in a conviction, for a court of criminal appeal to decide whether the accused has been deprived of a fair trial.' (emphasis added) (footnotes omitted)

Thus, where there is an inadvertent reception of inadmissible, prejudicial evidence, the trial judge has a discretion as to whether to discharge the jury or allow the trial to continue, with or without directions. The techniques for dealing with such prejudicial evidence, apart from discharging the jury, include (1) telling the jury to ignore the evidence, and (2) telling the jury to treat the case as if the evidence had not been given. Directions in this context are an aspect of the general law's requirement that a warning should be given whenever a warning is necessary 'to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case'. The 'possibility of a miscarriage of justice' is both the occasion for giving a warning to the jury and the determinant of its content.

The majority in Crofts v The Queen observed:

'No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.' (emphasis added)

The question for the judge on the appellant's application to 'abort' the trial was, having regard to the statutory language of s 116(2) of the Criminal Procedure Act, whether it was 'in the interests of justice' to do so. This required his Honour to consider whether there was a real and substantial (as distinct from a remote) risk that the appellant would not receive a fair trial according to law by reason of the jury having heard by inadvertence the evidence his Honour had earlier excluded. In doing so, it was necessary for his Honour to bear in mind the techniques for dealing with such circumstances referred to above, including any remedial directions that may be given to the jury. (footnotes omitted)

1. As these principles make clear, the issue in the present case is therefore whether the prejudicial effect of the cross‑examination by counsel for Mr Ronzitti could be addressed by a judicial direction, such that there was no real and substantial (as distinct from a remote) risk that the appellant would not receive a fair trial according to law by reason of the cross‑examination. That question, as the extract from Crofts v The Queen confirms,[147] involves consideration of the seriousness of the occurrence in the context of the contested issues; the stage at which the prejudicial event occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact.
2. As to the seriousness of the occurrence, while the cross‑examination impugning Mr Christensen's right to silence was clearly impermissible, there are, in our view, a number of matters that lessen the degree of prejudice that may have been caused by it.
3. First, the trial was long and complex, extending over 21 days from 12 May 2022 to 20 June 2022. The impermissible portion of the cross‑examination occurred on day 15 of the trial and was itself very brief. It should not be assumed that it would have had the same prominence in the eyes of the jury that it has since assumed when it became the focus of the appeal. Indeed, even in the context of Mr Christensen's evidence as a whole, which was given over the course of two days of the trial, the impermissible cross‑examination constituted only a small part of his evidence.
4. Secondly, save for the fact that the cross‑examination elicited the fact that Mr Christensen had been in custody pending trial, the cross‑examination did not adduce any prejudicial evidence against Mr Christensen. That is, it was, as the learned trial judge put it, the form and sequence of the questions that were asked that invited the jury to engage in an impermissible form of reasoning.[148] Juries are routinely told, as they were in this case, that counsel's questions are not evidence.[149] Generally speaking, in our view, the prejudice caused by an impermissible question is more amenable to cure by appropriate directions, than prejudice caused by inadmissible and prejudicial evidence of facts (which might be more difficult to ignore).
5. Insofar as the cross‑examination elicited the fact that Mr Christensen had been in custody pending trial, that matter was immediately addressed by a firm and appropriate warning by the learned trial judge (of his own motion), which was repeated in his Honour's final directions to the jury.[150]
6. Thirdly, the answers given by Mr Christensen to the impermissible questions (namely that he was advised by his lawyers not to make any comment to the police) not only provided an entirely plausible explanation for his prior silence, but they were also consistent with, and supported by, the directions ultimately given by the learned trial judge.
7. Finally, as the learned trial judge also recognised, it was of some significance that the impermissible questions did not come from the prosecution but from Mr Ronzitti's counsel, from whom the jury could have expected a robust attack to be made on Mr Christensen's credibility in Mr Ronzitti's interests. The unfairness inherent in the questions was therefore not one created by the prosecution, which would, in our view, have been a more serious irregularity in the trial.
8. We have already addressed the stage at which the prejudicial questions were asked. The State case had already closed, and while the cross‑examination occurred close to the end of the evidence, there were nevertheless a number of days before the trial was anticipated to conclude. The late stage at which the cross‑examination occurred does tend, in our view, to lessen the impact of the questions, given the significant amount of evidence that the jury had already heard. Nevertheless, in this regard, we recognise that the learned trial judge was far better placed to assess the significance of the stage at which the trial had reached in assessing whether the prejudice was irremediable.
9. As to the deliberateness of the conduct, certainly as the learned trial judge concluded, inasmuch as they undermined Mr Christensen's right to silence, the questions were 'improper'. Nevertheless, in terms of their 'deliberateness', the questions were evidently not asked with the purpose of prejudicing Mr Christensen (as could be inferred if the same questions had been asked by counsel for the prosecution) but with the purpose of protecting Mr Ronzitti's interests, albeit that they were an illegitimate means of pursuing that proper purpose.
10. The final, and most important consideration in our view, is the likely effectiveness of a judicial direction designed to overcome the apprehended impact of the questions. In our view, the directions given by the learned trial judge would have been, and were in fact, effective to overcome the impact of the questions.
11. First, the learned trial judge's directions were in clear and emphatic terms. To repeat, those directions included the following:

Now it was put to [Mr Christensen] by Mr Trowell on behalf of Ronzitti that if his account were true, he would have given it earlier than in the trial, that is he would have told the police or the DPP his version of events.

Now those questions did not respect Mr Christensen's right to silence and you shouldn't draw any inference against him by reason of him having exercised his right of silence up to the time of giving evidence. His explanation, you will recall, was that he acted on legal advice. That advice was entirely proper. He wasn't obliged to talk to the police or the DPP before the trial and he was entitled to elect to give evidence once the prosecution case was closed. Now Mr Trowell properly did not challenge that explanation.

Now in this State, as a matter of law, an accused person is entitled to remain silent and no adverse inference can be drawn against that person for doing so. So I direct you to disregard the suggestion that his account should be rejected as false because he chose not to give it to anyone earlier. It would be wrong to reject his evidence on that basis.

1. As is apparent, the learned trial judge repeated and reiterated, in a variety of ways, the content and purpose of the direction. The jury was, in express terms, 'direct[ed]' to disregard the suggestion that Mr Christensen's account should be rejected because he did not give it earlier and told that it would be 'wrong' to do so. His Honour's reference to this being 'a matter of law' underscored the fact that the jury was bound to observe the direction.
2. The direction was, in terms, more emphatic than that found by this Court in Gray to have 'neutralised any suggestion that the jury could draw an adverse inference from the appellant's invocation of the right to silence',[151] albeit that in Gray the Court concluded that, in context, the prosecutor had not made such a suggestion.[152] The direction in this case therefore needed to go further than in Gray. And it did.
3. In this context, we should address an alternative submission made by Mr Egan at the hearing of the appeal; namely that the learned trial judge's directions in this case should have gone further and that his Honour should have specifically directed the jury that they could not take into account the fact that Mr Christensen had been in custody for two and a half years before giving evidence of his account (that is, drawing attention to the length of time that Mr Christensen had spent in custody).[153] In our view the direction did not need to go that far, and indeed it might have been dangerous to do so. As we have said, the learned trial judge elsewhere directed the jury (twice) that it must draw no adverse inference from the fact that Mr Christensen had been in custody pending trial and the direction in relation to his right to silence was emphatic. To go further could well have 'highlight[ed] the point that was made by the impugned questions',[154] a matter which the learned trial judge specifically sought to avoid. His Honour was, in our view, best placed to find the right balance in that regard.
4. Secondly, as we have said above, the directions were designed to prohibit the jury from engaging in an impermissible form of reasoning. Save for the fact that Mr Christensen had been in custody pending trial, the direction did not require the jury to ignore, or put to one side, any evidence that they had improperly received. The directions required no 'mental gymnastics' on the part of the jury, and they were of a piece with the other directions it was given in relation to the onus and standard of proof and the presumption of innocence. There is no reason to think that the jury would have had any difficulty understanding and applying the direction.
5. Thirdly, the sense of the direction, and the reasoning required by it, was entirely consistent with the plausible answers given by Mr Christensen in response to the impermissible questions. This underscores that the directions were not only required as a matter of law, but that they were supported by logic and commonsense.
6. Finally, the particular directions given in this case must be viewed in light of the fundamental tenet of the law, explained in Taylor v The State of Western Australia, that:[155]

With rare exceptions, a criminal trial on indictment proceeds on the fundamental assumption that jurors are true to their oath or affirmation and understand and obey the trial judge's directions. The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. As the High Court observed in Dupas v The Queen, what is vital to the criminal justice system is 'the capacity of jurors, when properly directed by trial judges, to decide cases in accordance with the law, that is, by reference only to admissible evidence led in court and relevant submissions, uninfluenced by extraneous considerations'. That is consistent with the 'experience and wisdom of the law ... that, almost universally, jurors approach their tasks conscientiously'.

1. There is nothing in the nature of the impermissible cross‑examination or the directions given by the learned trial judge in the present case to suggest that the jury would not, or could not, understand and obey those directions. On the contrary, for the reasons we have already given there is every reason to conclude that the jury could, and would, do so.
2. For these reasons, in our view, the learned trial judge's clear and emphatic directions removed any real or perceptible risk that the jury might reason that Mr Christensen's evidence could, or should, be rejected because he had exercised his right to silence prior to trial. His Honour was therefore correct to refuse the application to discharge the jury. The failure to do so did not occasion a miscarriage of justice.
3. While we would grant leave in relation to ground 2, the ground has not been made out.

1. Ground 3 contends that the learned trial judge erred in law in the accomplice warning that his Honour gave in relation to the evidence of Mr Christensen (see [105] above), and in particular, the directions that:

(a) Mr Christensen's self‑interest was a reason for the jury to give his evidence 'careful scrutiny and to compare it with what is known about the circumstances of the charged offences from other evidence, and what other facts are accepted by [the jury] as reliable'; and

(b) the jury 'should consider whether there is any other evidence which confirms the evidence of Mr Christensen, and that is because [the jury] might not want to accept his evidence without seeing some independent evidence that confirms his account'.

1. Mr Egan relied upon two recent decisions of this Court, XHA v The State of Western Australia[156] and Davy‑Russo v The State of Western Australia,[157] which are to the effect that a direction that an accused person has a greater interest than any other witness in the outcome tends to undermine the presumption of innocence and divert the jury from its essential task.[158] He submitted that there was no circumstance that justified the warning given in the present case.
2. Significantly, Mr Egan submitted, the directions had the effect of being applied indiscriminately to the whole of the evidence of Mr Christensen including the evidence that exculpated Mr Egan. He submitted that the directions contained no demarcation between the warning as it applied to the evidence implicating Mr Ronzitti as an accessory to stealing the firearms and the evidence exculpating Mr Egan.[159]
3. As in relation to ground 2, the State accepted that the principle in Awad v The Queen applied to the consideration ground 3 and that a misdirection which bears upon the jury's assessment of the credibility of an accused's evidence may result in a miscarriage of justice in the case of a co‑accused.[160]
4. The State, nevertheless, submitted that there was no error in the direction given in relation to Mr Christensen's evidence. The State submitted that cases such as XHA and Davy‑Russo dealt with the different circumstance of an appellant who had given evidence in his own case. The State identified the relevant unfairness in those cases as being the real or perceptible risk that the directions in those cases deflected the jury from recognising the presumption of innocence and the applicable burden and standard of proof.[161]
5. The State submitted that principle permits the giving of an accomplice warning in relation to the evidence of a co‑accused provided that it is made clear that the warning relates only to the use of the evidence as against the co‑accused and maintains a balance between the interests of each accused.[162] The State submitted that Mr Christensen's incrimination of Mr Ronzitti provided a justifying circumstance for the warning and that Mr Christensen's self‑interest was a material part of Mr Ronzitti's case.[163]
6. The State submitted that the learned trial judge's directions were sufficiently confined to that part of the evidence of Mr Christensen which implicated Mr Ronzitti such that the interests of Christensen and the appellant were protected. In that respect, the State submitted that his Honour expressly referred to Mr Ronzitti several times when referring to the incriminating portions of Mr Christensen's testimony, thereby confining the warning to the incriminating evidence.[164]
7. The State also pointed to other directions that served to protect the interests of Mr Christensen and Mr Egan. In that context, the State referred to the Liberato direction in relation to Mr Christensen's evidence, including to the effect that if the jury thought that his evidence might reasonably be true, then it should find him not guilty.[165]
8. Finally, in this context, the State submitted that Mr Egan's counsel at trial did not apply for any redirection in relation to the accomplice warning.[166]

1. In identifying the relevant legal principles it is convenient to start with this Court's decision in XHA.
2. XHA did not concern an accomplice warning, but with reasoning by a judge sitting without a jury to the effect that the accused's evidence should be discounted on the basis that he had an interest in the outcome of the proceedings. In that context the Court discussed in detail the High Court's decisions in Robinson v The Queen[167] and Hargraves v The Queen.[168]
3. In Robinson the trial judge gave directions to the jury which included the following:[169]

If you thought a witness had a large interest in the outcome you, as the judges of the facts, might well conclude that you should scrutinize that witness's evidence closely. You might think ‑ it is a matter solely for you ‑ that the accused had the greatest interest of all the witnesses you saw and heard and that, therefore, you should scrutinise his evidence closely.

1. The Court in Robinson concluded that the direction was a serious misdirection and allowed the appeal. In that context their Honours said:[170]

[T]o direct a jury that they should evaluate evidence on the basis of the interest of witnesses in the outcome of the case is to strike at the notion of a fair trial for an accused person. Except in the most exceptional case, such a direction inevitably disadvantages the evidence of the accused when it is in conflict with the evidence for the Crown.

It follows that, if, as we think was the case, the jury would have understood his Honour's directions as meaning that the evidence of the appellant had to be scrutinized more carefully than that of any other witness, there was a serious misdirection in the summing up which went to the fairness of the trial of the appellant and which undermined the presumption of innocence.

1. As this Court recognised in XHA, these conclusions in Robinson were explained and clarified by the High Court in Hargraves. The trial judge in that case directed the jury that one of the things that it could take into account in assessing the credibility of witnesses was whether a witness had 'an interest in the subject matter of the evidence'. The judge gave, as examples, friendship, self‑protection and 'protection of the witness's own ego'. The direction did not refer specifically to the accused or any interest they had in the outcome of the case.[171]
2. The Court in Hargraves held that Robinson did not establish a new rule or principle, but rather applied a pre‑existing principle to the facts and circumstances of that particular case.[172] That pre‑existing principle was that a trial judge's instructions must not deflect the jury from its fundamental task of deciding whether the prosecution has proved the elements of the charged offence beyond reasonable doubt. The plurality in Hargraves explained:[173]

Robinson, too, is to be seen as a particular application of this more general principle. Inviting a jury to test the evidence given by an accused according to the interest that the accused has in the outcome of the trial or suggesting that the accused's evidence should be scrutinised more carefully than the evidence of other witnesses, deflects the jury from recognising and applying the requisite onus and standard of proof It is for the prosecution to prove its case, not for the accused to establish any contrary proposition. The instructions which a trial judge gives to a jury must not, whether by way of legal direction or judicial comment on the facts, deflect the jury from its fundamental task of deciding whether the prosecution has proved the elements of the charged offence beyond reasonable doubt.

The principle that is identified is expressed at a high level of abstraction: did the judge's instructions deflect the jury from its fundamental task of deciding whether the prosecution proved the elements of the charged offence beyond reasonable doubt? Directions given by a trial judge can often be assessed against that principle by observing no more than that the judge has so instructed the jury that it would be open to the jury to evaluate an accused's evidence on the basis of the accused's interest in the outcome of the trial. It is to be emphasised that trial judges must not instruct juries in that way: whether as a direction of law or as a judicial comment on the facts of the case. And it should also be emphasised that nothing that is said in these reasons should be understood as diminishing the need for intermediate courts of appeal to insist upon the observance of this requirement. Whether there has been on any other ground whatsoever a miscarriage of justice must always require consideration of the whole of the judge's charge to the jury. In every case, the ultimate question must be whether, taken as a whole, the judge's instructions to the jury deflected the jury from its proper task.

1. Accordingly, in XHA, this Court identified the relevant test in the following terms:

The critical question, as identified in Hargraves, is whether the directions of the judge to a jury are liable to have deflected the jury from their essential task. The essential task is to determine whether, on the whole of the evidence, the jury are satisfied beyond reasonable doubt that the charges have been proved. The risk is that if the jury are told that an accused person has a particular interest in the outcome of the trial, or if they are invited to scrutinise the evidence of the accused or to evaluate the weight to be given to it by reference to the accused's interest in the outcome of the trial, they will rely on that factor to discount the accused's evidence. To discount the evidence of the accused simply for the reason that, as the accused, he or she has a particular interest in the outcome is, as said in Stafford, wrong and unfair. Whether or not that risk sufficiently arises to be real or perceptible in a particular case will depend upon the wording of the particular direction, the context in which it appears and the issues at the trial.

1. These principles were applied in the context of an 'accomplice warning' in Davy‑Russo. In that case the appellant and a co‑accused were jointly charged with possessing prohibited drugs with intent to sell or supply. At trial the appellant gave evidence to the effect that the drugs were not his, that the co‑accused was a drug dealer and had access to the shed where the drugs were found, and that the co‑accused had, in effect, admitted that the drugs belonged to him. The trial judge directed the jury to consider the evidence of the appellant carefully because he had a degree of self‑interest in giving the evidence that he gave.[174]
2. In that context, this Court referred to the principles identified by Brennan J in Webb v The Queen.[175] The Court said:[176]

In Webb v The Queen, Brennan J referred to the possibility that an accomplice warning could be given if it is restricted in terms to those parts of the evidence that inculpate the co‑accused and it is made clear that it does not relate to any evidence that the accused has given regarding his own liability. This distinction had been referred to by the Court of Criminal Appeal of New South Wales in R v Henning. His Honour noted that such a direction was apt to be confusing, especially where the same part of an accused's testimony exculpates the accused witness and inculpates the co‑accused. His Honour concluded:

But when an accused, being in peril of conviction, gives self‑exculpatory evidence which inculpates a co‑accused, two factors will frequently militate against the giving of an accomplice warning. First, as the warning is to be acted on only if the accused witness is an accomplice, the jury must address that question before proceeding to consider the case against the co‑accused. That course may be prejudicial to the accused witness. Secondly, as the jury must not be directed to treat the evidence of the accused witness differently from the evidence of other witnesses in considering the case against the accused witness, an accomplice warning to scrutinize the evidence of the accused witness carefully must be clearly qualified as Henning suggests if it is not to cany an implication that runs counter to the principle in Robinson.

Without attempting to prescribe a universal rule applicable to cases where an accused witness gives evidence exculpating himself but implicating a co‑accused, it is generally preferable not to give an accomplice warning in respect of that evidence unless, in the particular circumstances, the trial judge is of the opinion that the jury might fail to appreciate the risk of acting on that evidence against the co‑accused. In such a case, the distinction drawn in Henning must be carefully explained to the jury.

1. The Court in Davy‑Russo went onto apply the 'critical question' as identified in Hargraves, concluding:[177]

The trial judge directed the jury that they should treat the evidence of the appellant with particular care because of his self‑interest. The self‑interest referred to must have been his interest in securing an acquittal. Thus, the jury were, in effect, directed to treat the appellant as a suspect witness because he was an accused person, notwithstanding the presumption of innocence. This direction was compounded by the trial judge's suggestion that the jury might not wish to accept the evidence of the appellant unless it was confirmed by other evidence. The necessary implication was that unless the appellant's evidence was corroborated the jury should be cautious in accepting it.

It is apparent that the trial judge thought that it was appropriate to give the directions that she gave because the appellant's evidence sought to cast the blame for the drugs on the co‑accused. Although her Honour declined to give an accomplice warning, the directions that she gave encompassed many of the components of such a warning, in particular by referring to the self‑interest of the appellant, suggesting that his evidence be scrutinised with particular care and suggesting that the jury may not wish to accept it without finding it to be confirmed by other independent evidence. In those circumstances the cautionary principles referred to in Webb should have been applied. That is, the direction should not have been given unless the jury would otherwise have failed to appreciate the risks of acting on the evidence and the distinction between evidence inculpating the co‑accused and evidence exculpating the appellant was clearly drawn.

The interest that one co‑accused has in seeking to shift blame to another co‑accused in a joint trial will often be readily apparent. In the circumstances of this case it was, as the trial judge correctly recognised, 'self‑evident'. There was no hidden danger or risk that the jury would fail to take into account matters relevant to the assessment of the appellant's evidence. That being so, there was no necessity for the direction that her Honour gave. Indeed, the direction was liable to cause the jury to place great significance on the appellant's self interest and deflect them from the task of properly assessing his evidence.

Equally importantly, the direction did not distinguish between evidence that inculpated the co‑accused and that which exculpated the appellant. That is no doubt because such a distinction was effectively impossible as the evidence of the appellant that implicated the co‑accused was precisely the same evidence he relied on to prove his own lack of involvement. However, that meant that the direction that was given applied indiscriminately to the whole of the evidence of the appellant and had the effect of placing him into a suspect category of witness. In particular, it applied to the evidence that he gave denying involvement in the drugs found in the shed.

There may be cases where one co‑accused gives evidence against another implicating the other in the offence and gives distinct and separate evidence which involves a denial of the offence. In such a case, it may be possible to give a warning regarding the evidence that implicates the co‑accused whilst making it clear that that warning does not relate to the evidence as a whole. Whether such a warning is necessary and appropriate will depend on the particular circumstances of the case. This was not such a case, for the reasons we have given.

The appellant's evidence was, of course, to be assessed by the jury in the same manner as the evidence of any other witness. However, the rejection of material aspects of the appellant's evidence solely on the basis that he had an interest in the outcome would involve treating the appellant as a suspect witness merely because he was the accused and also would undermine the presumption of innocence and the applicable burden and standard of proof. If material aspects of the appellant's evidence were true, or if there was a reasonable possibility that the material aspects of his evidence might be true, the appellant was entitled to an acquittal.

The directions given by the trial judge were contrary to the principles set out by the High Court in Robinson and Hargraves and recently referred to by this court in XHA.

There was a real or perceptible risk that the trial judge's directions had the effect of deflecting the jury from recognising and applying the presumption of innocence and the applicable burden and standard of proof. Consequently, a miscarriage of justice occurred at the trial.

1. In this context, it may be observed that the High Court's decision in Awad v The Queen can also be seen as an application of the general principle identified in Hargraves; namely that a trial judge's instructions must not deflect the jury from its fundamental task of deciding whether the prosecution has proved the elements of the charged offence or offences beyond reasonable doubt.
2. For example, in Awad v The Queen, in relation to the direction concerning the accused Mr Tambakakis' evidence, Kiefel CJ and Gleeson J referred to the effect of the direction as 'deflect[ing] the jury from their task':[178]

The concerns of Priest JA as to the effects upon the presumption of innocence and the onus of proof, which are essential to a criminal trial, are clearly well founded. The jury were invited to come to a view about Mr Tambakakis' motivation to give evidence. The choice given ‑ to identify that motive as one of a 'guilty person' who decided to 'tough out cross‑examination in the hope or belief that he will be more likely to be believed and his defence accepted if he takes the risk of giving evidence' - has the real potential both to undermine the presumption and to deflect the jury from their task of determining whether they are satisfied beyond reasonable doubt that the accused were guilty of the acts charged.

1. Similarly, Gordon and Edelman J, referring to Hargraves said:[179]

Where the error is a particular misdirection to a jury, it will usually be necessary to focus upon the specific misdirection when considering whether the misdirection had the capacity to deflect the jury from their fundamental task of deciding whether or not the prosecution has proved the elements of the charged offence beyond reasonable doubt. That may commonly be the case where the misdirection was not trivial or innocuous and, in the context of the whole of the charge, it was 'open' for the jury to follow the misdirection.

1. While dissenting as to the effect of the misdirection in Awad v The Queen, Steward J also identified the relevant test in that case as being the one set out in Hargraves.[180]
2. Awad v The Queen, of course, is significant because, as the State accepts applies in the present case, the misdirection which deflected the jury from its task in assessing Mr Tambakakis' credibility equally resulted in a miscarriage in the case of his co‑accused, Mr Awad, as 'Mr Tambakakis' credibility was critical to the jury's evaluation of the evidence and the outcome of the case against both Mr Tambakakis and Mr Awad'.[181]
3. Finally, the High Court most recently considered the principles governing a miscarriage of justice by instructions to the jury in Huxley v The Queen.[182] The Court, again, confirmed that the relevant test was that set out in Hargraves, and emphasised that, whether such a miscarriage was established, 'must always require consideration of the whole of the judge's charge to the jury'.[183]
4. In that context, Gordon, Steward and Gleeson JJ also observed that:[184]

These principles concerning the approach to a misdirection of law apply in the same way whether the misdirection is characterised as an "error of law", as a "miscarriage of justice", or as a "wrong decision of any question of law".

1. As is apparent from the terms of ground 3, Mr Egan contended that the impugned directions in the present case should be characterised as a 'wrong decision on a question of law', within the meaning of s 30(3)(b) of the Criminal Appeals Act 2004 (WA).

1. Before turning to the effect of the learned trial judge's 'accomplice warning' in the context of his Honour's directions as a whole, it is appropriate to address two related issues that arose at the hearing of the appeal.
2. As reflected in the warning itself, the learned trial judge warned the jury to carefully scrutinise Mr Christensen's evidence because of Mr Christensen's 'degree of self‑interest' in giving the evidence that he did, including by 'minimis[ing] his own conduct' and 'implicat[ing] Mr Ronzitti'. These aspects of the directions can be seen clearly at the commencement of the warning, where his Honour said:[185]

The three accused are charged together as accomplices. Now you do need to carefully scrutinise the evidence of Mr Christensen and that is because you may consider that he has a certain degree of self‑interest in giving his evidence. He may be seeking to justify or at least minimise his own conduct in this case and by doing so, he's implicated Ronzitti.

1. As is apparent, the learned trial judge in this passage referred to all three of the accused as being charged 'as accomplices', including Mr Egan.
2. Given the focus on Mr Christensen's self‑interest, the following questions naturally arose in the course of the appeal:

(a) what was Mr Christensen's self‑interest in incriminating Mr Ronzitti?[186]; and

(b) what was Mr Christensen's self‑interest in giving evidence favourable to Mr Egan?[187]

1. As will be seen, the answers to these questions are relevant to an assessment of the extent to which the effect of the accomplice warning could be 'confined', such that it could not be said to divert the jury from its essential task.
2. In relation to the questions, it was not immediately apparent how it was in Mr Christensen's self‑interest to implicate Mr Ronzitti or to provide an innocent explanation for Mr Egan's DNA being found at the Burial site.
3. It was not, for example, an indispensable part of Mr Christensen's account of being taken to the Burial site by Cameron Anderson in the hours following the burglary that he be accompanied by Mr Ronzitti. In that sense, strictly speaking, Mr Christensen could have given his account of being taken to the Burial site by Mr Anderson without necessarily implicating Mr Ronzitti in that activity.
4. Similarly, it was not immediately apparent how it was in Mr Christensen's self‑interest to provide an innocent explanation for Mr Egan's DNA being found at the Burial site. On one view, that evidence was entirely separate from, and unrelated to, Mr Christensen's evidence explaining his own involvement in burying the fruits of the burglary after it had been committed.
5. Nevertheless, and despite these first impressions, when Mr Christensen's evidence is considered in its entirety, it becomes clear how his evidence implicating Mr Ronzitti and exculpating Mr Egan 'fit' within his evidence as a whole and why all of the evidence that he gave can be seen to have been in his 'self‑interest'.
6. In particular, when viewed in its entirety, it is apparent that Mr Christensen's evidence systematically addressed, and explained, each of the circumstances that might be thought to bear upon his guilt in having aided in the burglary and provided a narrative of evidence that was, at least internally, consistent in its details.
7. For example, in light of all of the evidence adduced by the State, Mr Christensen could not plausibly have given an account of being taken to the Burial site, without knowledge or forewarning, in the early hours of 22 November 2019, without including Mr Ronzitti in that narrative. As noted above, the evidence adduced by the State safely established that Mr Christensen and Mr Ronzitti were together in Mr Ronzitti's car at Hungry Jack's, Spearwood at around 2.39 am on 22 November 2019. Any plausible account given by Mr Christensen of the early hours of 22 November 2019 needed to deal with that evidence. It was therefore in Mr Christensen's self‑interest to give evidence that he was with Mr Ronzitti during that time, even if it incriminated Mr Ronzitti as an accessory after the fact to the stealing of the firearms.
8. Similarly, although perhaps not as obviously, it was in Mr Christensen's self‑interest to give an account of taking Mr Egan to the Burial site in the days following the burglary, thereby explaining Mr Egan's DNA on the handgun and holster. In that regard, it was clear from the very beginning of the trial, that one of the circumstances relied upon by the State was that each of the accused knew one another and that, insofar as the evidence established that any one of the accused aided in the burglary, the association between each of the accused provided evidence linking the other accused to the burglary. Indeed, the association between the accused was the subject of admissions made at the beginning of the trial and was the subject the evidence of the first witness called by the State.[188]
9. In those circumstances, it was in Mr Christensen's self‑interest to provide an innocent explanation for Mr Egan's DNA being on the handgun and holster. It would not have been lost on Mr Christensen, as we have concluded above,[189] that the presence of Mr Egan's DNA on the handgun and holster was strong circumstantial evidence that Mr Egan aided in the burglary. As we have concluded in relation to Mr Egan,[190] while Mr Christensen's association with each of Mr Egan and Mr Ronzitti, considered in isolation, was not strong evidence that Mr Christensen had aided in the burglary, when that association is considered in conjunction which other evidence it added to the overall inference of his guilt. It was therefore in Mr Christensen's self‑interest to distance both of the other accused from the burglary.
10. For these reasons, in our view, it is not possible to neatly distinguish between which parts of Mr Christensen's evidence were affected by his 'self‑interest' and which were not.
11. We turn then to the critical question, namely, whether the learned trial judge's accomplice warning (set out at [105] above) had the capacity to deflect the jury from their fundamental task of deciding whether or not the prosecution has proved the elements of the charged offence beyond reasonable doubt.
12. For the reasons that follow, in our view, the warning did have that capacity and, as a consequence, was a 'wrong decision on a question of law' and led to a miscarriage of justice.
13. First, in the present case, there was, in our view, no need for an accomplice warning at all. The interest that Mr Christensen had in giving the evidence that he did, including the evidence implicating Mr Ronzitti as an accessory after the fact to the stealing of the firearms, was obvious. So too was the spirited and comprehensive challenge to Mr Christensen's credibility made by counsel for Mr Ronzitti. The jury can have been in no doubt as to the reason for, and the nature, of that challenge. There was, in our view, no risk that the jury would fail to take into account any matter relevant to the assessment of Mr Christensen's evidence.
14. Secondly, in much the same way as the direction considered by this Court in Davy‑Russo, the jury were directed to treat Mr Christensen as a suspect witness because he was an accused person, notwithstanding the presumption of innocence. That direction was compounded by the learned trial judge's suggestion that the jury 'might not want to accept [Mr Christensen's] evidence without seeing some independent evidence that confirms his account'. The direction necessarily implied that unless Mr Christensen's evidence was corroborated the jury should be cautious in accepting it. The warning was also given as a direction, rather than a mere comment (including that the jury 'must carefully scrutinise that evidence'). In this context it is relevant that, because Mr Christensen was the only one of the accused to give evidence, it was the only direction given as to the assessment of the evidence of an accused person.
15. Thirdly, while the fact that Mr Christensen implicated Mr Ronzitti as an accessory after the fact was the reason why the accomplice warning was given, the warning was not, in our view, limited to the evidence having that effect. That is, while the learned trial judge commenced this part of his directions as something he needed to say 'as a matter of law because of what he said implicating Ronzitti' and his Honour expressly referred to Mr Ronzitti several times as part of the warning, his Honour's direction to carefully scrutinize Mr Christensen's evidence was not confined to the evidence concerning Mr Ronzitti.
16. On the contrary, the following matters suggest that the direction applied in general terms to Mr Christensen's evidence, including his evidence in relation to Mr Egan's attendance at the Burial site:

(a) the warning commenced with the observation that the 'three accused are charged together as accomplices', expressly including Mr Egan. Insofar as the warning was given because of Mr Christensen's status as an 'accomplice', it therefore specifically included Mr Egan;

(b) the operative (and most significant) part of the warning referred to Mr Christensen's evidence in general terms, without distinction:[191]

The fact that there is a degree of self‑interest in giving that evidence is not a reason of itself for you to reject the evidence of Christensen, but it is a reason for you to give it careful scrutiny and to compare it with what is known about the circumstances of the charged offences from other evidence, and what other facts are accepted by you as reliable.

You should consider whether there is any other evidence which confirms the evidence of Mr Christensen, and that is because you might not want to accept his evidence without seeing some independent evidence that confirms his account.

(c) later in the direction, his Honour said:[192]

It is a matter for you to consider whether you accept the evidence of Christensen, but because of what I've told you, you must carefully scrutinise that evidence, particularly in view of its prejudicial effect on Ronzitti.

While this passage directs the jury to carefully scrutinize Mr Christensen's evidence 'particularly' in view of its effect on Mr Ronzitti, it can equally be understood as confirming that the direction was not 'exclusively' because of that effect, and that it related to Mr Christensen's self‑interest generally.

1. Thirdly, and in any event, in our view any confinement of the warning to the evidence concerning Mr Ronzitti's involvement could not be left to mere implication. As we have concluded above, it is not possible to neatly distinguish between which parts of Mr Christensen's evidence were affected by his 'self‑interest' and which were not. Given the effect of the warning on the jury's task, if an accomplice warning was to be given in the present case, it was necessary for the cautionary principles referred to in Webb to have been applied, by ensuring that the distinction between evidence inculpating Mr Ronzitti and evidence exculpating Mr Christensen and Mr Egan was clearly drawn. On any view that distinction was not 'clearly drawn'.
2. Fourthly, the other parts of the learned trial judge's directions did not mitigate the damage done by the accomplice warning. In that regard, while the directions reproduced at [109] above did refer more directly to the need for careful scrutiny specifically in relation to the evidence concerning Mr Ronzitti and went on to say that 'in relation to Mr Egan the situation is different', those directions must be understood in their proper context.
3. Those directions appeared toward the very end of the learned trial judge's directions and they were not directly concerned with the approach that the jury should take when assessing the credibility and reliability of Mr Christensen's evidence. They were, rather, concerned with identifying the alternative verdicts that were open to the jury to consider. It is clear, for example, that the reference to Mr Egan's situation being 'different' was concerned with the fact that, unlike Mr Christensen and Mr Ronzitti, in relation to Mr Egan no alternative verdict was left to the jury for its consideration.
4. In addition, the learned trial judge's clarification as to what would amount to corroboration (at [106] above), while directing greater attention to the effect of Mr Christensen's evidence on Mr Ronzitti, did not address the effect of that evidence on the case against Mr Egan. In that regard, the clarifying remarks were, in our view, neutral in terms of mitigating the effect of the accomplice warning as a whole.
5. Similarly, the fact that there were other directions given in relation to the standard and onus of proof and a Liberato direction given in relation to Mr Christensen's evidence did not ameliorate the effect of the direction to treat Mr Christensen as a suspect witness. As Gordon and Edelman JJ concluded in Awad v The Queen, a Liberato direction is directed to what the jury should do after they have decided whether or not to accept an accused's evidence in whole or in part. It does not address the approach the jury should take when assessing the credibility or reliability of that evidence.[193]
6. Further, and significantly, the Liberato direction in the present case, as would be expected, was to the effect that, if the jury 'accepted Mr Christensen's evidence that he was not involved in the charged offences or thought that it might be true as a reasonable possibility, then [the jury] would obviously acquit him [i.e. Mr Christensen]'.[194] It was not a direction that, if the jury accepted Mr Christensen's evidence as to how Mr Egan's DNA came to be found on the handgun and holster, or thought that it might be true as a reasonable possibility, then the jury would 'obviously acquit' Mr Egan.
7. Which brings us to the significance of the accomplice warning for the jury's essential task in determining whether it could be satisfied beyond reasonable doubt that Mr Egan aided in the burglary (and as a consequence the use of the stolen Toyota HiLux).
8. As our conclusions in relation to ground 1 demonstrate, the presence of Mr Egan's DNA on the handgun and holster was, in our view, the most significant circumstance in the circumstantial case against him. While it was necessary for the circumstantial case to be assessed as a whole, in our view the jury, reasonably instructed, could only have concluded beyond reasonable doubt that Mr Egan was guilty of aiding in the burglary, if it was satisfied that there was no reasonable innocent explanation for his DNA being on the handgun and holster.
9. To put it another way, for the reasons we have discussed at [156] to [157] above, to reach verdicts of guilty, it was necessary for the jury to be satisfied beyond reasonable doubt that Mr Egan's DNA was deposited on the handgun and holster during the course of the burglary or, at the very least, that his DNA was deposited on the handgun and holster between the time of the burglary and the point at which they were buried at the Burial site. Unless the jury made such a finding, in our view, the other circumstances could not have sustained verdicts of guilt beyo[195]reasonable doubt.195
10. This highlights the centrality of Mr Christensen's evidence to Mr Egan's defence. That is because it was Mr Christensen's evidence, and only his evidence, that was capable of providing an innocent explanation for Mr Egan's DNA being on the handgun and holster. That meant that, as a matter of logic, and in the peculiar circumstances of this case, if the jury accepted Mr Christensen's evidence as to how Mr Egan's DNA came to be found on the handgun and holster, or thought that it might reasonably be true, then Mr Egan was entitled to be acquitted.
11. In the context of the evidence at trial, therefore, a direction which had the effect of deflecting the jury from its task, by treating Mr Christensen as a suspect witness whose evidence the jury 'might not want to accept ... without seeing some independent evidence that confirms his account' gave rise to a real and perceptible risk of a miscarriage of justice. The direction invited the jury to treat as suspect the only witness whose evidence could give rise to a reasonable inference consistent with Mr Egan's innocence (and only invited the jury to do so in relation to that witness).
12. In this last respect, the present case may be distinguished from Huxley v The Queen where the impugned direction expressly referred to 'the case against Mr Rewha [the co‑accused]'[196] and where 'separate but similar directions' were given in relation to two witnesses (one concerning 'the case against Mr Huxley' and the other concerning 'the case against Mr Rewha').[197] No such juxtaposition appeared in the direction in the present case, which, as we have said, was in general terms.
13. While, as we have concluded, the jury were entitled to reject Mr Christensen's evidence as to how Mr Egan's DNA came to be found on the handgun and holster, it was not bound to do so. It was open to the jury, as the 'constitutional tribunal for deciding issues of fact',[198] to accept that evidence, or at least, to consider that it might reasonably be true. In those circumstances, the unfairness in directing the jury to treat Mr Christensen's evidence with suspicion and requiring 'careful scrutiny' and in need of corroboration is manifest.
14. In so concluding, we recognise that the direction was given in relation to the evidence of Mr Christensen (and not the evidence of Mr Egan) and so did not imply that Mr Egan was not entitled to the presumption of innocence, as it did in relation to Mr Christensen. Nevertheless, in our view, the direction, did tend to deflect the jury from recognising and applying the applicable burden and standard of proof in the case against Mr Egan. Rather than focussing the jury's attention on whether Mr Christensen's evidence exculpating Mr Egan might reasonably be true, the effect of the direction was to deflect its attention towards whether the jury 'accepted' that evidence, and towards the need to look for some independent evidence that might corroborate it.
15. Indeed, in some ways the direction was more prejudicial to Mr Egan than it was to Mr Christensen, notwithstanding that it undermined the presumption of Mr Christensen's innocence. Unlike the centrality of Mr Egan's DNA being on the handgun and holster for the case against Mr Egan, Mr Christensen had to contend with a circumstantial case consisting of a number of strong strands. As a practical matter, in his own case, Mr Christensen's evidence had to provide some explanation for (or raise sufficient doubt in relation to) a number of different circumstances, and a number of those explanations were, on their face, quite fanciful. By contrast, Mr Egan need only have sufficient doubt in relation to one circumstance (his DNA on the handgun and holster), for the circumstantial case as a whole to fail.
16. Finally, insofar as Mr Egan's reliance on the adverse impact of the accomplice warning on the jury's essential task in determining the case against him is derivative of the impact of that warning on Mr Christensen, in our view, and particularly in light of our conclusion that it was in Mr Christensen's self‑interest to provide an innocent explanation for Mr Egan's DNA being on the handgun and holster, this case cannot be distinguished from Awad v The Queen.
17. For these reasons, there was a real or perceptible risk that the learned trial judge's directions had the effect of deflecting the jury from recognising and applying the applicable burden and standard of proof in the case against Mr Egan. Those directions involved a 'wrong decision on a question of law' and gave rise to a miscarriage of justice.
18. In so concluding, we are conscious that Mr Egan's trial counsel did not apply for any further direction or re‑direction before the learned trial judge. Nor did trial counsel for Mr Christensen. Nevertheless, for the reasons we have given, in our view it is 'reasonably possible' that the accomplice warning 'may' have affected the verdicts.[199]
19. We would therefore grant leave to appeal on ground 3 and uphold the ground.

1. The State did not rely upon the proviso in s 30(4) of the Criminal Appeals Act 2004 (WA) in the event that a miscarriage of justice was established on ground 3. It submitted that the accomplice warning would have had significance in the evaluation of Mr Christensen's evidence and therefore in determining the verdict.[200]
2. That concession was properly made. It is not possible for this Court to be satisfied that Mr Egan's conviction was inevitable. As we have said, while there were other aspects of Mr Christensen's evidence that were so unlikely as to border on preposterous, it cannot be

concluded, on the basis of the record, that an appropriately instructed jury was bound to reject Mr Christensen's evidence as to how Mr Egan's DNA came to be found on the handgun and holster. This is not a case like Hofer v The Queen, in which the evidence of Mr Christensen, in relation to that matter, was so glaringly improbable that this Court can conclude that it was incapable of belief.[201]

1. In light of the foregoing, the appeal should be allowed and Mr Egan's convictions on counts 1 to 3 be quashed.
2. There are no circumstances that would render it unjust for the appellant to be tried again. There should be an order for a new trial on counts 1 to 3.
3. We would make the following orders:
   1. Leave to appeal on grounds 1, 2 and 3 is granted.
   2. Appeal allowed.
   3. The convictions on counts 1 to 3 are quashed.
   4. There be a new trial on counts 1 to 3.

1. The appellant has appealed against conviction.
2. He was charged on indictment with five counts.
3. Count 1 alleged that between 20 November 2019 and 23 November 2019, at Hamilton Hill and elsewhere, the appellant, Ashley Christensen and Nicholas Ronzitti stole a Toyota Hilux motor vehicle, the property of Central West Refrigeration Pty Ltd, contrary to s 371A read with s 378 of the Criminal Code (WA) (the Code).
4. Count 2 alleged that on 21 November 2019, at Yangebup, the appellant, Mr Christensen and Mr Ronzitti, while in the place of Finesse Corporation Pty Ltd trading as Claremont Firearms without its

consent, committed the offence of stealing, and that the accused were in company with each other, contrary to s 401(2)(ba) of the Code.

1. Count 3 alleged that, on the same date and at the same place as in count 2, the appellant, Mr Christensen and Mr Ronzitti stole a quantity of firearms, the property of Finesse Corporation Pty Ltd trading as Claremont Firearms, contrary to s 378 of the Code.
2. Count 4 alleged that on 22 November 2019, at North Lake, the appellant, Mr Christensen and Mr Ronzitti wilfully and unlawfully destroyed property, namely the Toyota Hilux motor vehicle referred to in count 1, and that the vehicle was destroyed by fire, contrary to s 444(1)(a) of the Code.
3. Count 5 alleged that on 30 November 2019, at Hamilton Hill, the appellant attempted to pervert the course of justice by taking a CCTV hard‑drive from a residential property so as to prevent the appellant being prosecuted on a charge of burglary, contrary to s 143 of the Code.
4. On 20 June 2022, after a joint trial before Staude DCJ and a jury:

(a) the appellant was convicted of counts 1, 2 and 3 and acquitted of counts 4 and 5;

(b) Mr Christensen was convicted of counts 1, 2, 3 and 4; and

(c) Mr Ronzitti was acquitted of counts 1, 2, 3 and 4, but convicted of an alternative offence of being an accessory after the fact to the stealing offence charged in count 3.

1. On 28 July 2022, the trial judge imposed the following sentences:

(a) the appellant received a total effective sentence of 9 years' imprisonment;

(b) Mr Christensen received a total effective sentence of 10 years' imprisonment; and

(c) Mr Ronzitti received a sentence of 12 months' imprisonment wholly suspended for 2 years.

1. The appellant appeals on three grounds.
2. Ground 1 alleges, in essence, that the verdicts of guilty upon which the convictions are based should be set aside because, having regard to the evidence, they are unreasonable or cannot be supported.
3. Ground 2 alleges, in essence, that the trial judge erred in refusing an application by defence counsel for the appellant to discharge the jury as a result of impermissible cross‑examination of Mr Christensen by senior counsel for Mr Ronzitti, thereby giving rise to a miscarriage of justice.
4. Ground 3 alleges, in essence, that his Honour erred in law in his directions to the jury in relation to Mr Christensen's evidence.
5. On appeal, the appellant did not dispute that the acts the subject of counts 1, 2 and 3 occurred, but he did dispute that he did any of those acts or that he participated in any of the charged offences.
6. On 11 January 2023, I referred the appellant's application for leave to appeal on grounds 1, 2 and 3 to the hearing of the appeal.
7. I would grant leave to appeal on each of the grounds. Grounds 1 and 2 have not been made out. However, ground 3 has been established. The judgments of conviction must be set aside and a new trial of the appellant must be had. My reasons are as follows.

The background facts and circumstances, the State's case at trial, the appellant, Mr Christensen and Mr Ronzitti's cases at trial, the relevant evidence at trial, the trial judge's summing up and the submissions of the parties in the appeal

1. The background facts and circumstances, the State's case at trial, the appellant, Mr Christensen and Mr Ronzitti's cases at trial, the relevant evidence at trial, the trial judge's summing up and the submissions of the parties in the appeal are summarised in Quinlan CJ and Hall JA's reasons. I will not repeat their Honours' summary except to the extent necessary to explain my reasons.
2. Between 8 and 11 November 2019, the Toyota Hilux motor vehicle the subject of count 1 was stolen from the premises of Central West Refrigeration Pty Ltd at Cockburn Central. On 21 November 2019, the burglary and stealing offences the subject of counts 2 and 3 were committed. On 22 November 2019, the Toyota Hilux was destroyed by fire at Beeliar Regional Park. On 25 November 2019, the burial site of the firearms the subject of count 3 was discovered at Beeliar Regional Park.
3. On 26 November 2019, Mr Christensen was arrested and charged. On 26 November 2019, the appellant and Mr Ronzitti were arrested but released without charge. On 28 February 2020, the appellant was arrested and charged. On 6 March 2020, Mr Ronzitti was arrested and charged.

1. It is convenient first to consider ground 2, then ground 3 and finally ground 1.

1. I agree with Quinlan CJ and Hall JA that leave to appeal on ground 2 should be granted, but that the ground has not been made out.

Ground 3: the circumstantial nature of the State's case at the trial

1. The State's case at trial against each of Mr Christensen, the appellant and Mr Ronzitti was circumstantial.
2. The State had a strong circumstantial case against Mr Christensen.
3. The State's case against the appellant was weaker than its case against Mr Christensen.
4. The State's case against Mr Ronzitti was weaker than its case against each of Mr Christensen and the appellant.
5. The circumstantial evidence relied upon by the State in relation to the appellant was, in summary, as follows:

(a) The appellant and his co‑accused were known to and closely associated with each other at the time of the burglary.

(b) The planning and execution of the burglary, including the stealing of 221 firearms, meant that it was likely to involve people who knew each other well and trusted each other.

(c) On 21 November 2019 (the date of the burglary), the appellant and Mr Ronzitti were in company with each other when the appellant purchased items at Bunnings, Bibra Lake. The appellant and Mr Ronzitti were together in Mr Ronzitti's car for some time on that day.

(d) On 21 November 2019 the appellant purchased from Bunnings a pair of work gloves, a roll of gaffer tape and a torch. On 26 November 2019, police found two similar torches at the appellant's house in Hamilton Hill. One of the torches was later found to have concrete residue on it, consistent with having been used during the burglary. The appellant had an alternative explanation raised during closing address, namely that the concrete residue was attributable to renovations to his home that were being carried out at the time as shown by the police search video.

(e) During a police search of the appellant's former partner's home photographs of certificates were found indicating that the appellant had been trained in construction activity and trades. The State contended that it should be inferred that the appellant possessed the technical skills to plan and carry out the burglary.

(f) A balaclava was found during the police search of the appellant's former partner's house in the same cupboard as the certificates together with an inspection or 'snake' camera able to surveil the interior of the burgled premises. At least one of two people depicted on CCTV footage conducting reconnaissance in the vicinity of the burgled premises on 24 October 2019 had their face covered. Both of the two people depicted in CCTV footage on 31 October 2019 had their faces covered.

(g) The appellant's build and weight was consistent with one of the two people conducting reconnaissance on 24 and 31 October 2019.

(h) Mr Christensen gave evidence that the appellant was a person he thought might buy some of the firearms or be able to sell some of them.

(i) Defence counsel for the appellant conceded in closing address that 'according to Mr Christensen, yes, [the appellant] might have been involved' as an accessory after the fact to the stealing of the firearms.

(j) A mixed DNA profile, including that of the appellant, was found on a Browning handgun in the buried cargo case at the burial site (41 billion times more likely that the appellant was a contributor) and a second mixed DNA profile including that of the appellant was found on a Walther brand holster buried in a different hole at the burial site (100 billion times more likely that the appellant was a contributor). The State contended that the inference to be drawn from the DNA evidence was that the likelihood ratios were consistent with the appellant being involved in the stealing of the firearms.

1. The State's case against each of Mr Christensen, the appellant and Mr Ronzitti depended upon the State proving beyond reasonable doubt that each of the accused had done an act of aiding, with the requisite intention, in relation to the burglary charged in count 2 and the stealing charged in count 3. The State's case on count 1, which alleged that Mr Christensen, the appellant and Mr Ronzitti stole the Toyota Hilux motor vehicle, depended upon the accused having unlawfully used the Toyota Hilux, within s 371A(1)(a) of the Code, by using the vehicle in the commission of the burglary charged in count 2 and the stealing charged in count 3. The State alleged that the Toyota Hilux, which was stolen from the premises of Central West Refrigeration between 8 and 11 November 2019, was essential to the commission of the burglary and the stealing offences. A vehicle was required to transport the stolen firearms from the premises of Claremont Firearms to their intended hiding place at Beeliar Regional Park.

1. Mr Christensen gave evidence at the trial.
2. The appellant and Mr Ronzitti did not give evidence at the trial.
3. The State did not tender any electronically recorded interview between Mr Christensen and police.
4. The State did not tender any electronically recorded interview between the appellant and the police. However, the State did tender a video record of the search by police of the appellant's house in Hamilton Hill.
5. The State tendered two electronically recorded interviews between Mr Ronzitti and police. The first interview was conducted on 26 November 2019. The second was conducted on 5 March 2020. In the interviews Mr Ronzitti denied any involvement in the commission of the charged offences.
6. Mr Christensen's evidence‑in‑chief was, relevantly, as follows (ts 1187 ‑ 1204):

(a) In about October and November 2019, Mr Christensen was living at his mother's house. At that time Mr Ronzitti was also living there.

(b) In about October and November 2019, the appellant was a good friend of Mr Christensen. They had known each other for about 10 years.

(c) Mr Christensen and Mr Ronzitti had a shared interest in, amongst other things, using methylamphetamine and cannabis. Mr Christensen would usually buy methylamphetamine from Cameron Anderson. Mr Christensen and Mr Anderson were friends.

(d) On 11 November 2019, Mr Christensen bought a cargo box from Bunnings. Mr Anderson had requested Mr Christensen to buy the cargo box for him and had given Mr Christensen the purchase money in cash. Mr Christensen left the cargo box at the home of his aunt, Christina Christensen.

(e) On 21 November 2019, Mr Christensen was at home. In the early hours of the morning of 22 November 2019 (at about 1.30 am or 2.00 am), Mr Ronzitti awoke Mr Christensen. Mr Ronzitti said that Mr Anderson had telephoned and wanted Mr Christensen and Mr Ronzitti 'to bring him that box'. Mr Christensen and Mr Ronzitti drove from Mr Christensen's house to Christina Christensen's house in Mr Ronzitti's car. On the way, they stopped at Hungry Jack's to buy something to eat.

(f) When they arrived at Christina Christensen's house, Karl Brassat was asleep in the carport. Mr Christensen asked Mr Brassat whether 'he wanted to come for a cruise with us'. Mr Brassat said that he did. Mr Christensen, Mr Ronzitti and Mr Brassat then drove with the cargo box to Yangebup.

(g) Upon arrival at the location in Yangebup, Mr Christensen, Mr Ronzitti and Mr Brassat met Mr Anderson. After some discussion, Mr Anderson asked the others to follow him into bushland in the Bibra Lake area. Mr Anderson drove a Nissan Patrol vehicle and the others drove in Mr Ronzitti's car. The group of men parked their vehicles on a track and alighted.

(h) Mr Anderson went to the back of his vehicle and removed some shovels. The others followed Mr Anderson into the bush. Mr Christensen then saw two crates. There were about 20 or 30 handguns in each crate. There was also a bag containing rifles.

(i) Mr Anderson told the others to bury the firearms.

(j) Mr Christensen and Mr Brassat used shovels to dig a number of holes.

(k) After they had finished digging the holes and burying the firearms, Mr Christensen found four handguns which he took.

(l) After they left the burial site, Mr Christensen dropped Mr Brassat in the Bibra Lake industrial area. Next, Mr Christensen visited his father's house in Samson. Mr Christensen then went to Mr Anderson's house. Mr Christensen gave the four handguns to Mr Anderson. Mr Anderson gave Mr Christensen and Mr Ronzitti a quantity of methylamphetamine worth about $500 for the work that had been done at the burial site. Mr Anderson told Mr Christensen and Mr Ronzitti that they could have all of the rifles at the burial site.

1. The effect of Mr Christensen's evidence was, relevantly:

(a) Mr Christensen's evidence exculpated himself from criminal responsibility under s 7 and s 8 of the Code in relation to count 1 (the stealing offence in relation to the Toyota Hilux), count 2 (the aggravated burglary offence) and count 3 (the stealing offence in relation to the firearms), but inculpated himself as an accessory after the fact to the stealing offence charged in count 3.

(b) Mr Christensen's evidence exculpated the appellant from criminal responsibility under s 7 and s 8 of the Code in relation to counts 1, 2 and 3 and also from criminal responsibility as an accessory after the fact in relation to count 3.

(c) Mr Christensen's evidence exculpated Mr Ronzitti from criminal responsibility under s 7 and s 8 of the Code in relation to counts 1, 2 and 3, but inculpated Mr Ronzitti as an accessory after the fact in relation to count 3.

1. Senior counsel for Mr Ronzitti cross‑examined Mr Christensen. The object of the cross‑examination was to discredit Mr Christensen's evidence which inculpated Mr Ronzitti as an accessory after the fact to the stealing offence charged in count 3. During the cross‑examination the following exchange occurred (ts 1224 ‑ 1225):

Now, when I asked you that first question, what I was getting at is that you've always known what had happened that night, what had happened in the early hours of that morning, haven't you? ‑ Yep.

You've always known that you were innocent of a crime that you've been charged with which you didn't commit? ‑ Yep.

Okay, you've always known that because you're charged with the burglary of the ‑ of the Claremont Firearms and the theft of the ‑ of the guns that were inside the vault? ‑ Yep.

You know that. You've been charged with the theft of the Toyota HiLux and its destruction by fire? ‑ Yep.

You know that? ‑ Yep.

And you've known that for, what, at least two years or more? ‑ Yep.

And you've been in custody all of that time, haven't you? ‑ Yep.

Yes. So did you ever think that perhaps you should tell the police or tell the DPP that you're innocent of those charges. Did you ever think about that? ‑ Well, I thought it would be most appropriate to wait until my day in court so I can speak about it.

Yes, but you could speak to them about it. You could tell the police what happened and say, 'It wasn't me'? ‑ Yeah.

Yes. You could have told the story that you've told today and you could have ‑ could have ‑ ‑ ‑? ‑ I was ‑ I was advised by my lawyer at the time that it's probably best I shouldn't speak to the police about it.

What, to tell them about your innocence? ‑ Yes.

So you're blaming your lawyer? ‑ No, my lawyer just told me, 'Don't make any comment to the police'.

Okay. Did ‑ did you want to tell the police and tell the DPP that you were innocent of these charges? ‑ Yeah, of course.

Yes. But you just decided to wait your time, two and a half years, so you would get your day in court, is that it? ‑ Yep.

Well, I suggest to you, Mr Christensen, that the reason that this story didn't emerge sooner is because it's a recent invention on your part? ‑ No, that's not true.

Do you know what I mean by that? Just something you've made up, right, to sail your way through this trial? ‑ That's not true.

1. Upon senior counsel for Mr Ronzitti completing his cross‑examination of Mr Christensen, the trial judge gave the jury these directions (ts 1259):

... I just want to say something about the evidence that came out in the early part of Mr Trowell's cross‑examination of Mr Christensen, which involved Mr Christensen agreeing that he'd been in custody since the ‑ since he was arrested.

Now, it's very important that you don't treat that as probative or as proof of anything in this trial. It's entirely neutral and you shouldn't have any prejudice against Mr Christensen because of that fact. And you shouldn't speculate as to why he's been in custody rather than on bail.

But obviously these are serious charges and not everyone gets bail so I give you that direction so that you don't allow yourselves to be distracted by that evidence. It doesn't prove anything in this case.

Ground 3: the trial judge's relevant directions in his summing up

1. The trial judge directed the jury in orthodox terms in relation to the presumption of innocence, the burden of proof and the standard of proof (ts 1537 ‑ 1539).
2. His Honour also directed the jury in orthodox terms in relation to the nature of a circumstantial case and the proof by the State of the circumstantial case that it alleged against each of Mr Christensen, the appellant and Mr Ronzitti (ts 1558 ‑ 1564).
3. The trial judge gave the jury conventional directions about his Honour's role in directing the jury on the law and the jury's role in evaluating the evidence and making findings of fact. In particular, his Honour told the jury that:

(a) what his Honour said about the law was binding upon the jury and the jury must accept his Honour's directions on the law as correct (ts 1539);

(b) the jury were the sole judges of the facts, the jury were bound to judge the facts according to the evidence and the jury were bound to apply the law, as explained by his Honour, to the facts as the jury found them to be (ts 1539);

(c) it was the jury's exclusive responsibility to decide the facts of the case (ts 1539);

(d) as the judges of the facts, the jury were 'the sole judges of the credibility of the witnesses' (ts 1544);

(e) it was for the jury to decide 'the weight to be given to their testimony' (ts 1544);

(f) a large number of the witnesses had not been challenged on the basis that they were dishonest or unreliable (ts 1544);

(g) however, the evidence of some of the other witnesses had been disputed and, in some cases, the honesty or reliability of the witness had been challenged (ts 1544);

(h) where the honesty or reliability of a witness had been challenged it would be necessary for the jury to assess the evidence (ts 1544); and

(i) the necessity to assess evidence applied to the evidence of Mr Christensen and the statements made by Mr Ronzitti in his police interviews (ts 1545).

1. His Honour directed the jury that the jury were entitled to accept the evidence of a witness completely or to reject his or her evidence completely. Also, the jury were entitled to accept part but not all of the evidence of a witness. Those observations of his Honour applied to the evidence of Mr Christensen and the statements made by Mr Ronzitti in his police interviews (ts 1545).
2. A little later, the trial judge gave the jury these directions about Mr Christensen's evidence (ts 1550):

If you accepted Mr Christensen's evidence that he was not involved in the charged offences or thought that it might be true as a reasonable possibility, then you would obviously acquit him.

If you were not to accept his evidence and rejected as a reasonable possibility that it was true, it would not follow automatically that you would find him guilty of any offence as charged. Mr Christensen does not have to prove his innocence. That means that if you reject his evidence you should put it to the side as evidence that you do not accept. And the question would remain, 'Has the State, on the basis of evidence that I do accept, proved his guilt beyond reasonable doubt?'

Now, it's very important for you to remember that the question for you to consider is whether on the evidence before you, evidence that you do accept, the State has proved guilt beyond a reasonable doubt. So if Mr Christensen's evidence or any other evidence gives rise to a reasonable doubt with respect to any of the counts against him, then you cannot convict him of those counts.

1. His Honour then directed the jury in relation to senior counsel for Mr Ronzitti's challenge to Mr Christensen's credibility to the extent that the challenge failed to respect Mr Christensen's right to silence (ts 1550 ‑ 1551):

Now, I want to say something briefly, members of the jury, in the context of Mr Christensen's evidence about the challenge that was made to his credibility by Mr Trowell on behalf of Mr Ronzitti.

Now Mr Christensen, you'll recall, was challenged quite vigorously by Mr Trowell on the basis that he had fabricated his account of being called to the scene, in fact asked to go to the scene or to at least meet Cameron Anderson by Mr Ronzitti in the early hours of 22 November.

It was put to him that he had made that story up to explain away evidence that was against him in the prosecution case and that he had the opportunity of doing so over a period of time since his arrest. He denied doing so. He maintained that it was Mr Ronzitti who woke him at about half past 1 or 2 o'clock on the morning of 22 November 2019 and asked him to go and assist Anderson.

Christensen said that he went along with Ronzitti and he thought that if he helped Anderson out, there would be some benefit to him, there would be some gear in it for him, meaning drugs. I think his evidence was that he eventually got half a ball of methylamphetamine from him which he said was one and a half grams or so, worth about $500.

Now it was put to him by Mr Trowell on behalf of Ronzitti that if his account were true, he would have given it earlier than in the trial, that is he would have told the police or the DPP his version of events.

Now those questions did not respect Mr Christensen's right to silence and you shouldn't draw any inference against him by reason of him having exercised his right of silence up to the time of giving evidence. His explanation, you will recall, was that he acted on legal advice. That advice was entirely proper. He wasn't obliged to talk to the police or the DPP before the trial and he was entitled to elect to give evidence once the prosecution case was closed. Now Mr Trowell properly did not challenge that explanation.

Now in this State, as a matter of law, an accused person is entitled to remain silent and no adverse inference can be drawn against that person for doing so. So I direct you to disregard the suggestion that his account should be rejected as false because he chose not to give it to anyone earlier. It would be wrong to reject his evidence on that basis.

1. Next, the trial judge directed the jury in relation to Mr Christensen's evidence that implicated Mr Ronzitti as an accessory after the fact to the stealing offence charged in count 3 in the context of Mr Christensen, the appellant and Mr Ronzitti having been jointly charged and tried as alleged accomplices (ts 1551 ‑ 1554):

On the other hand, it would be quite proper and it was quite proper for it to be suggested to [Mr Christensen] that he had an opportunity over a period of time to come up with an account that was tailored to the case against him. And that, as I understand it, was the main thrust of Mr Trowell's challenge, that [Mr Christensen had] come up with a false account implication [of] Ronzitti having had the benefit of seeing all the evidence against him.

There is something that I need to say about Mr Christensen's evidence, members of the jury, as a matter of law because of what he said implicating Ronzitti, really as an accessory after the fact to the stealing offence committed at Claremont Firearms.

The three accused are charged together as accomplices. Now you do need to carefully scrutinise the evidence of Mr Christensen and that is because you may consider that he has a certain degree of self‑interest in giving his evidence. He may be seeking to justify or at least minimise his own conduct in this case and by doing so, he's implicated Ronzitti. His position is that he was not involved at all.

Basically it's Mr Christensen's position that Ronzitti woke him to tell him that Anderson had a job for them and that they subsequently, with [Karl Brassat], assisted Anderson by burying a number of handguns and rifles that were in Anderson's car, which was described as a Nissan Patrol.

By his evidence he admits that he thought the guns were stolen and that he, [Brassat] and Ronzitti, helped to hide them by burying them. That, you might well conclude, amounts to him being an accessory after the fact to an offence of stealing, but a less serious offence than those with which he and the others are charged.

Mr Ronzitti's position, consistent with his police interviews, is that he was not involved at all. So the effect of Christensen's evidence is to contradict Ronzitti and to implicate him, at least to the extent of being an accessory after the fact.

The fact that there is a degree of self‑interest in giving that evidence is not a reason of itself for you to reject the evidence of Christensen, but it is a reason for you to give it careful scrutiny and to compare it with what is known about the circumstances of the charged offences from other evidence, and what other facts are accepted by you as reliable.

You should consider whether there is any other evidence which confirms the evidence of Mr Christensen, and that is because you might not want to accept his evidence without seeing some independent evidence that confirms his account.

...

What is put against Mr Christensen is that he has made up a narrative to fit the case against him, that he has, in effect, tailored his evidence in that regard. It is a matter for you to consider whether you accept the evidence of Christensen, but because of what I've told you, you must carefully scrutinise that evidence, particularly in view of its prejudicial effect on Ronzitti.

Now, it is clear from Mr Christensen's evidence that by the time he came to bury the guns in the Rhino cargo box, he knew that they had been stolen. He admitted as much in cross‑examination. By that admission you may find, and it is a matter for you, but not one that I think you would find difficult, that he admitted being an accessory after the fact to stealing, and by his evidence, as I've said, he implicated Ronzitti in that regard.

Being an accessory after the fact, in this case by dealing with property knowing that it was stolen, and in order to protect the thief, is an alternative offence to stealing. So I will, in due course, give you some directions about that.

In short, if, on the basis of Christensen's evidence, you were not satisfied that he and the others were actually involved in the commission of counts 1 to 4, you might well be satisfied that Christensen and Ronzitti assisted in the disposal of some of the stolen guns in a way that made them accessories after the fact, having done so to assist another person who had stolen or received them.

Obviously the State's case is that each accused is criminally responsible for the burglary, stealing and motor vehicle offences. It is only if you found them not guilty of the burglary and stealing offences on the basis that you accepted Christensen's account as truthful, that you would have reason to consider the alternative, but I'll come back to that later.

1. Shortly afterwards, his Honour told the jury that he wanted 'to return ever so briefly to what [his Honour had] said by way of direction as to the scrutiny [the jury] should give to Mr Christensen's evidence and that it implicates Mr Ronzitti' and his Honour's suggestion that '[the jury] might look for some confirmation or corroboration in other evidence of Mr Christensen's account' (ts 1558). His Honour then explained to the jury that there was no evidence at the burial site that corroborated Mr Christensen's account that Mr Ronzitti was at any material time at the burial site (ts 1558).
2. The trial judge noted in his summing up that the State's case, as opened, was put on two bases. First, that 'each accused, acting in concert, that is, together with each other, or with other unknown persons, did one or more of the acts that constitute the charged offences' (ts 1564). Secondly, that 'each accused aided the others or one of them to commit the offences' (ts 1564). His Honour then said that, as the prosecutor pointed out in her closing address, the evidence adduced at the trial did not establish that any of the accused actually went into the premises of Claremont Firearms and stole the firearms. His Honour noted that there was no evidence that any of the accused did an act that constituted the offences charged in counts 2 and 3. Accordingly, the State's case, as closed, was that 'the accused participated in the commission of the burglary and stealing offences by aiding each other or others in the commission of those offences' (ts 1565).
3. A little later, his Honour summarised the State's case, as closed, as follows (ts 1565):

The State's case is that the three accused were acting together, that is in concert, to commit these offences. It's the State's case that the three accused, and possibly others, formed a plan to commit the burglary in order to steal the firearms, and that the plan involved the stealing and eventual destruction of the Toyota HiLux.

The State's case is that the three accused had knowledge of the planned offences and participated by aiding in the commission of those offences. The State says that you can infer that a plan was made because of the sophisticated nature of the offending and the preparation that was required to carry it out and to get away from the scene without risk of detection, and that you can infer from the evidence as a whole that each accused was involved in that plan.

1. The trial judge referred to the DNA profile matching the appellant's DNA profile that was found on the Browning hand gun and the Walther holster at the burial site and noted the State's position that the DNA evidence was 'consistent with [the appellant] being involved in the theft of the firearms' (ts 1618 ‑ 1619). His Honour then said (ts 1619):

Of course Mr Christensen's evidence gives a different explanation for the presence of those profiles. Christensen said that he saw [the appellant] touch a firearm and a holster, but the State submits that Christensen's evidence in this regard should be rejected and you're asked to infer that [the appellant's] profile was found ‑ his DNA was put on those items because he was involved in stealing them.

1. His Honour mentioned Mr Christensen's evidence in relation to counts 2 and 3, including Mr Christensen's admission that 'he thought the guns that he was asked to bury were stolen and that with Ronzitti and Karl Brassat he buried them at Cameron Anderson's request in order to help him' (ts 1623). His Honour then said (ts 1623 ‑ 1624):

And in relation to Mr Ronzitti, I have given you a warning about giving careful scrutiny to Mr Christensen's evidence to the extent that it implicates him on the basis that it may be seen to be given out of self‑interest to give an account that minimises his involvement and distances himself from the burglary but in a way that necessarily implicates Ronzitti.

[Mr Christensen] and Ronzitti are jointly charged on the indictment as accomplices and the court's experience is that an accomplice may have an interest in minimising their own involvement by giving evidence implicating another to a greater degree.

And I've told you to look in giving careful scrutiny to Mr Christensen's evidence that might corroborate or confirm it and I've mentioned the evidence that Ronzitti's [vehicle] can be seen to have left Christensen's house in Bradbury Road at a time that would fit in with Mr Christensen's evidence that they went out about that time.

But of course you'll know that what's put against Mr Christensen is that he has tailored his evidence to what he knows about the State case, which is a criticism that's made by Mr Trowell and [the prosecutor].

If after careful scrutiny you accept Mr Christensen's evidence and on that basis find that Ronzitti was not involved in the burglary but merely helped Anderson, then you will need to decide on the evidence whether you are satisfied beyond reasonable doubt of his guilt as an accessory after the fact.

On Christensen's account Ronzitti assisted by enlisting Christensen's help, and otherwise assisting at the dig site, although to a limited extent because of his arm injury, to conceal the firearms in order to help Anderson. You would have to be satisfied that he did so and that he did so knowing that an offence of stealing had been committed to assist the offender.

1. The trial judge directed the jury that if the jury acquitted Mr Christensen and Mr Ronzitti or either of them on count 3, on the basis that the jury accepted Mr Christensen's evidence, then the jury would 'need to decide whether one or other of them, as the case may be, is guilty of being an accessory after the fact' (ts 1624).
2. His Honour then said that the situation in relation to the appellant was 'different' (ts 1624). In particular, his Honour said (ts 1624 ‑ 1625):

Mr Christensen's evidence is that he invited [the appellant] to the site a day or so later and offered him a gun that [the appellant] touched but did not accept. [The appellant], according to Christensen, also with Ronzitti, emptied some holsters from a cargo box. But Christensen said that he then reburied the box and nothing was taken from the site.

So there is no evidence that [the appellant], if he knew, as you think he must have known, that the guns and other items were stolen, did not do anything in relation to those items that would be capable of constituting assistance to the offender. So I'm not going to ask you for an alternative verdict as to whether he was an accessory after the fact as there's simply no evidence of that.

(a) the position of each accused was that he was 'not involved in the Claremont firearms burglary and the related offences at all';

(b) it was only Mr Christensen 'who has given evidence that he was involved after the event in burying some of the stolen firearms'; and

(c) both Mr Ronzitti and the State contend that Mr Christensen's evidence in that regard was untruthful.

1. In Robinson, the appellant was convicted after trial of rape. On appeal to the High Court, the appellant contended that the trial judge had erred in directing the jury that, in considering the credibility of a witness, 'one of the tests to be applied is the interest which the witness had in the outcome of the case and that the greater the interest the more carefully the witness's evidence should be scrutinized' (533).
2. The trial judge gave the jury this direction about credibility (534):

Another test was what interest does a witness have in the outcome of a case? If you thought a witness had a large interest in the outcome you, as the judges of the facts, might well conclude that you should scrutinize that witness's evidence closely. You might think ‑ it is a matter solely for you ‑ that the accused had the greatest interest of all the witnesses you saw and heard and that, therefore, you should scrutinize his evidence closely.

1. Following a request from defence counsel, the trial judge redirected the jury as follows (534):

On Friday I told you in effect that one of the tests you apply in considering a witness was the interest a witness had in the outcome of the case, and I think I suggested to you this morning you might well conclude that the accused has the greatest interest of all the witnesses. I think I also said that you might think that the greater the interest the more carefully you should scrutinize a witness's evidence. You might well conclude, it is a matter for you, that the complainant also has an interest in the outcome of this case. I didn't intend to lead you to believe that you apply only the interest in the outcome of the case test to the accused only. You apply it to all the witnesses if you believe that test is applicable.

1. The trial judge then directed the jury in orthodox terms in relation to the burden of proof and the standard of proof.
2. The High Court held that the trial judge had misdirected the jury. The appellant's appeal was allowed, the conviction quashed and a new trial ordered.
3. Mason CJ, Brennan, Deane, Toohey and McHugh JJ said (535):

Notwithstanding the correctness of his Honour's directions concerning the onus and standard of proof, however, it is impossible to escape the conclusion that the fairness of the trial was seriously impaired by the effect of his directions concerning the interest of a witness in the outcome of the case. The jury could hardly escape the conclusion that the appellant had 'the greatest interest of all the witnesses' in the outcome of the case. Indeed, his Honour had suggested to the jury that they might think that the appellant had a greater interest than any other witness in the outcome of the case. If the jury accepted that suggestion, as they almost certainly would have, his Honour's directions had the effect that the evidence of the appellant had to be scrutinized more carefully than the evidence of any other witness, including the complainant, for no reason other than that he was the accused. The unfairness of such a direction is manifest, particularly when the outcome of the trial inevitably turned upon the jury's preference for the evidence of the complainant against that of the accused.

1. Their Honours added that the impugned directions virtually had the effect that the appellant was to be treated as a 'suspect witness' in the same way as 'an accomplice, a complainant in a sexual case and a young child have been treated'; that is, as witnesses whose evidence is to be accepted 'only after the most careful scrutiny' (535).
2. Mason CJ, Brennan, Deane, Toohey and McHugh JJ then said (535 ‑ 536):

Furthermore, his Honour's directions on the point do not sit well with the presumption of innocence which is the consequence of a plea of not guilty. If that presumption is to have any real effect in a criminal trial, the jury must act on the basis that the accused is presumed innocent of the acts which are the subject of the indictment until they are satisfied beyond reasonable doubt that he or she is guilty of those acts. To hold that, despite the plea of not guilty, any evidence of the accused denying those acts is to be the subject of close scrutiny because of his or her interest in the outcome of the case is to undermine the benefit which that presumption gives to an accused person.

1. Their Honours emphasised, however, that nothing in what they had written was intended to suggest that the evidence of the accused in a criminal trial is not subject to the tests which are generally applicable to witnesses (535). Their Honours elaborated (536):

Thus, in examining the evidence of a witness in a criminal trial ‑ including the evidence of the accused ‑ the jury is entitled to consider whether some particular interest or purpose of the witness will be served or promoted in giving evidence in the proceedings. But to direct a jury that they should evaluate evidence on the basis of the interest of witnesses in the outcome of the case is to strike at the notion of a fair trial for an accused person. Except in the most exceptional case, such a direction inevitably disadvantages the evidence of the accused when it is in conflict with the evidence for the Crown.

1. In Stafford v The Queen,[202] Deane, Dawson and Toohey JJ said:

It follows from the decision of this Court in Robinson v The Queen ... that a trial judge should not direct the jury that the 'interest' of an accused in the outcome of his or her trial is a 'factor' to be taken into account in assessing his or her evidence. Nor should a trial judge direct the jury to the effect that, in assessing the evidence of all the witnesses, they should take account of their relative interests in the outcome. Any direction which directly or indirectly requires or invites an assessment of the reliability of the evidence of the accused or the relative reliability of the evidence of the accused and other witnesses by reference to interest or lack of interest in the outcome of the trial is likely to be understood by the jury as a direction or invitation to discount the evidence of the accused who will inevitably be seen as having a greater interest in the outcome of the trial than any other witness. That is what the decision in Robinson was directed against.

Ordinarily ... it is preferable that a trial judge refrains from directing attention to the interest of the accused in the outcome of the trial as a relevant factor in assessing the reliability of his or her evidence. If the circumstances of a particular case are exceptional and require some reference to the accused's interest in the outcome as a matter of fairness to the accused, it should suffice to inform the jury that they must approach the case on the basis that the accused is presumed innocent of the acts which are the subject of the indictment and that it would be wrong and unfair for the jury to discount the evidence of the accused simply for the reason that, as the accused, he or she has a particular interest in the outcome of the trial.

1. In Ramey v The Queen,[203] Brennan J (delivering the judgment of his Honour, Dawson and McHugh JJ) made these observations:

There can, and should, be no mistake as to the application of the principle laid down by this Court in Robinson v The Queen ... It is not to be eroded by Courts of Criminal Appeal nor, a fortiori, by trial judges by failing faithfully to apply the prohibition against the giving of a direction to evaluate the evidence of an accused on the basis of the accused's interest in the outcome of the case.

1. The reasons in each of Stafford and Ramey were published in the context of the High Court refusing an application for special leave to appeal. The significance of that context was explained in North Ganalanja Aboriginal Corporation v The State of Queensland.[204] However, as Steytler P (McLure JA agreeing) pointed out in Etherton v The State of Western Australia,[205] it is apparent that in Stafford and Ramey the High Court chose deliberately to underline what had previously been said in Robinson.
2. In Hargraves v The Queen,[206] the High Court considered Robinson. French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ held that there were 'evident difficulties in treating [Robinson] as having established some new rule or principle' [34].
3. Their Honours explained [37] ‑ [40]:

Later decisions of intermediate courts generally treated (See, eg, R v Brotherton (1992) 29 NSWLR 95; R v Asquith (1994) 72 A Crim R 250; R v Brown [1995] 1 Qd R 287; R v Haggag [1998] VSC 355; (1998) 101 A Crim R 593; Morris v The Queen [2006] WASCA 142; (2006) 201 FLR 325; cf R v McMahon [2004] VSCA 64; (2004) 8 VR 101) Robinson as standing 'for a rigorous principle to be faithfully applied' (R v Haggag [1998] VSC 355; (1998) 101 A Crim R 593 at 598 per Callaway JA). But the 'principle' for which Robinson was treated as standing was usually stated negatively: a trial judge should not direct a jury to evaluate an accused's evidence on the basis of the accused's interest in the outcome of the case. Such a negative statement does not identify the content or source of the relevant principle in a way that permits its application except by some mechanical comparison between those forms of words that have passed muster and those that have not.

This is not a satisfactory form of 'rule' or 'principle'. And Robinson did not establish or apply any new or distinct rule or principle that is to be expressed in the negative terms identified. Rather, the decision in Robinson depended upon a more basic principle which, examination will show, stems from the fundamental features of a criminal trial. Examination will also show that this more basic principle is the foundation for several decisions which are sometimes treated as if they establish separate and distinct rules governing what may or may not be said in instructing a jury. To identify that principle it is necessary to begin by recognising what was the question at issue in Robinson and what is the question at issue in these matters.

In both Robinson and the present case the immediate question was and is whether on any ground whatsoever there was a miscarriage of justice at the trial. The appellants' allegation in this case that there was a misdirection was not an allegation of any of the other grounds of appeal identified in the common form criminal appeal statute. It was not an allegation that the verdict of the jury should be set aside on the ground that it was unreasonable or cannot be supported having regard to the evidence; it was not an allegation of the wrong decision, at trial, of any question of law.

The governing principle applied by the Court in Robinson was not identified as being new. Rather, the Court directed ((1991) [1991] HCA 38; 180 CLR 531 at 536) attention to whether the directions that were given at trial constituted a miscarriage of justice because they affected the fairness of the trial and, in particular, did so by undermining 'the benefit' which the 'presumption [of innocence] gives to an accused person'. That is, the Court determined whether there was on any other ground whatsoever a miscarriage of justice by applying a principle which, when stripped of the rhetorical overtones that may be sounded by reference to 'the presumption of innocence', directed attention to the fundamental features of a criminal trial.

1. In Hargraves, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said that Robinson should be seen as a particular application of the more general principle that a trial judge's instructions to a jury must not, whether by legal direction or judicial comment on the facts, 'deflect the jury from its fundamental task of deciding whether the prosecution has proved the elements of the charged offence beyond reasonable doubt' [45]. Their Honours also said that, inviting a jury to test the accused's evidence according to the interest that the accused has in the outcome of the trial, or suggesting that the accused's evidence should be scrutinised more carefully than the evidence of other witnesses, 'deflects the jury from recognising and applying the requisite onus and standard of proof' [45].
2. Their Honours concluded [46]:

The principle that is identified is expressed at a high level of abstraction: did the judge's instructions deflect the jury from its fundamental task of deciding whether the prosecution proved the elements of the charged offence beyond reasonable doubt? Directions given by a trial judge can often be assessed against that principle by observing no more than that the judge has so instructed the jury that it would be open to the jury to evaluate an accused's evidence on the basis of the accused's interest in the outcome of the trial. It is to be emphasised that trial judges must not instruct juries in that way: whether as a direction of law or as a judicial comment on the facts of the case. And it should also be emphasised that nothing that is said in these reasons should be understood as diminishing the need for intermediate courts of appeal to insist upon the observance of this requirement. Whether there has been on any other ground whatsoever a miscarriage of justice must always require consideration of the whole of the judge's charge to the jury. In every case, the ultimate question must be whether, taken as a whole, the judge's instructions to the jury deflected the jury from its proper task.

1. In Awad v The Queen, the appellants (Mr Awad and Mr Tambakakis) were jointly tried and were each convicted of attempting to possess a commercial quantity of an unlawfully imported border‑controlled drug, namely cocaine. Australian Border Force officers intercepted a consignment of printers which contained the cocaine. An inert substance was substituted for the cocaine and the consignment was delivered. Mr Tambakakis collected the consignment and stored it at premises from which he conducted a business. The next evening the consignment was moved to the premises of another co‑accused. Mr Tambakakis delivered a van to those premises and the van was later used to transport the consignment to a warehouse which Mr Tambakakis had leased in a false name. The Crown case was that Mr Awad and Mr Tambakakis participated in the unloading of the consignment at the warehouse and during that period each of them was in possession of the substance in the consignment.
2. Mr Tambakakis gave evidence at the trial. Mr Awad did not give evidence. Mr Awad's case relied significantly upon Mr Tambakakis' evidence. Mr Tambakakis denied any intention to possess cocaine. The essence of his defence was that he thought the consignment contained steroid tablets. Mr Awad had told Mr Tambakakis that he was interested in obtaining samples of the steroids. Mr Tambakakis gave evidence that Mr Awad did not enter the van containing the substance.
3. The critical issue at trial was whether, in the belief that the consignment contained a border‑controlled drug, Mr Awad and Mr Tambakakis received, had physical possession of, or had control or joint control of the consignment. The credibility of Mr Tambakakis' evidence was 'at the heart of' Mr Awad and Mr Tambakakis' joint trial [66].
4. On appeal to the High Court, Mr Awad and Mr Tambakakis contended that the trial judge misdirected the jury concerning the manner in which the jury should assess Mr Tambakakis' evidence. The impugned direction was as follows [71]:

Mr Tambakakis chose to give evidence in his own defence, he did not have to do that. An accused person has the right to remain silent in court, they are not a compellable witness, he cannot be compelled to give evidence. So, he chose to. In choosing to give evidence, Mr Tambakakis undertook to tell the truth, and he also submitted himself to cross‑examination which is the way lawyers test a witness' credibility and truthfulness, and he was cross‑examined over an extensive period of time by [the prosecutor].

Now, there are two factors that are significant that you should have regard to when you are assessing Mr Tambakakis' evidence. Firstly, in a criminal trial, there is nothing more [that] an innocent [person] can do than give evidence in his own defence and subject himself to cross‑examination, and that is what occurred here. On the other hand, secondly, a guilty person might decide to tough out cross‑examination in the hope or belief that he will be more likely to be believed and his defence accepted if he takes the risk of giving evidence. You should consider both of these observations when evaluating Mr Tambakakis' evidence.

In the end, it is for you to determine whether or not you accept it and what weight you give to it. In making this determination, you should treat the accused's evidence in exactly the same way as you would treat the evidence of any other witness. However, you must bear in mind, ladies and gentlemen, that an accused giving evidence in his own defence is probably under more stress than any other witness giving evidence in a trial. And if you were assessing Mr Tambakakis' demeanour, which of course you would have been when he gave his evidence, have regard to that fact.

1. A majority of the High Court (Kiefel CJ, Gordon, Edelman and Gleeson JJ; Steward J dissenting) allowed the appeal and ordered a new trial.
2. Kiefel CJ and Gleeson J observed [33]:

(a) Mr Tambakakis' defence was that he believed that the substance in the consignment was steroids;

(b) his evidence that Mr Awad did not enter the van containing the substance (and, necessarily, that Mr Awad did not participate in unloading the substance), if accepted, could seriously affect the Crown case against Mr Awad on possession; and

(c) Mr Tambakakis' credibility was critical to the jury's evaluation of the evidence and the outcome of the prosecution against both Mr Tambakakis and Mr Awad.

1. Their Honours noted that the impugned direction invited the jury to come to a view about Mr Tambakakis' motivation to give evidence [34]. The choice the jury was given had 'the real potential both to undermine the presumption [of innocence] and to deflect the jury from their task of determining whether they [were] satisfied beyond reasonable doubt that the accused were guilty of the acts charged' [34].
2. Gordon and Edelman JJ said that the impugned direction had the capacity to affect the jury's assessment of Mr Tambakakis' credibility in circumstances where his credibility was central to both his and Mr Awad's defences. Their Honours reasoned [98] ‑ [99], [103] ‑ [104], [106]:

The two aspects of the prohibited direction did not 'balance' each other out. The jury were not instructed that the presumption that Mr Tambakakis was not guilty required them, before reaching any conclusions, to approach Mr Tambakakis' evidence only on the basis that 'there is nothing more [that] an innocent [person] can do than give evidence in his own defence and subject himself to cross‑examination'. Instead, it was left open for the jury to approach Mr Tambakakis' evidence on the basis that 'a guilty person might decide to tough out cross‑examination in the hope or belief that he will be more likely to be believed and his defence accepted if he takes the risk of giving evidence'.

By leaving the jury with the choice to approach Mr Tambakakis' evidence on the a priori basis that he was a guilty person deciding to 'tough out cross‑examination', there was a conflict with the directions given on the onus and standard of proof. As this Court said in Robinson v The Queen (At CLR 535‑ 6; ALR 495), if the presumption of innocence 'is to have any real effect in a criminal trial, the jury must act on the basis that the accused is presumed innocent of the acts which are the subject of the indictment until they are satisfied beyond reasonable doubt that he or she is guilty of those acts'.

... [D]espite the mitigating effect of the correct directions, it remained the case that the jury had been effectively instructed in contradictory terms. Without a redirection to the jury requiring them to disregard the prohibited direction ... it remained possible that the jury would speculate as to the reason that Mr Tambakakis gave evidence, and that confusion might ensue concerning the onus and standard of proof in the assessment of Mr Tambakakis' evidence.

... [E]ven if the prospect of confusion was small, it was highly significant in circumstances where the credibility of Mr Tambakakis was central to both his defence and Mr Awad's defence. The trial judge correctly directed the jury that there was 'one significant factual issue' that they needed to resolve in relation to Mr Tambakakis. That issue was whether the prosecution had proved that Mr Tambakakis knew that the consignment contained a border‑controlled drug. The credibility of Mr Tambakakis, in turn, was central to Mr Awad's defence that (as Mr Tambakakis said) Mr Awad did not get into the Kia van and thus did not possess the substance in the consignment, and that (consistently with the account of Mr Tambakakis) Mr Awad believed the substance in the consignment to be steroids.

...

In the context of the trials of Mr Awad and Mr Tambakakis, therefore, with the importance of the jury's assessment of Mr Tambakakis' credibility, the prohibited direction had the capacity to deflect the jury from their task and thus the potential to affect the result of the trials.

1. Recently, in Huxley v The Queen, the trial judge allegedly misdirected the jury in a joint trial of the appellant (Mr Huxley) and two co‑accused, namely Mr Rewha and Ms Doyle. Mr Huxley was convicted of the murder of the victim, Mr McCabe. Mr Rewha was found not guilty of assaulting Mr McCabe. Ms Doyle was found guilty of being an accessory after the fact to Mr McCabe's manslaughter.
2. The Crown case was that Mr Rewha assaulted Mr McCabe occasioning bodily harm in company on 15 August 2015 in a unit in Townsville and that Mr Huxley murdered Mr McCabe on 16 August 2015 at Crystal Creek or elsewhere in Queensland. The evidence of a Crown witness, Ms Greer, was essential to the conviction of Mr Rewha because it was the only evidence that Mr McCabe was assaulted in the Townsville unit on 15 August 2015 and that Mr Rewha was present at the unit. Ms Greer's evidence was also relevant to the Crown case against Mr Huxley because she gave evidence that Mr Huxley was not present in the unit when Mr McCabe was assaulted and as to the severity of the assault.
3. Mr Huxley's defence included that the assault on Mr McCabe in the Townsville unit, when Mr Huxley was not present, inflicted potentially fatal injuries on Mr McCabe from which he later died. As part of his defence, Mr Huxley argued that Ms Greer's evidence established both Mr Huxley's absence from the Townsville unit when the assault occurred and the seriousness of the assault on Mr McCabe in the unit. Accordingly, Ms Greer's evidence was alleged by Mr Huxley to provide a reasonable doubt as to Mr Huxley's guilt.
4. The trial judge was of the view that, in a joint trial of Mr Rewha and Mr Huxley, the jury could not be given two directions about Ms Greer's evidence; namely, one direction in the Crown case against Mr Rewha and another (different) direction in the Crown case against Mr Huxley. The trial judge said that the making of two separate directions would lead to 'total confusion' [17].
5. The impugned direction concerned the jury's use of Ms Greer's evidence. Her evidence allegedly exculpated Mr Huxley from the offence of murder and allegedly inculpated Mr Rewha in the offence of unlawful assault occasioning bodily harm in company.
6. The impugned direction was in these terms [34]:

You should only act upon [Ms Greer's] evidence if, after considering her evidence with the warning that I have given in mind, and all the other evidence in the trial, you are convinced of its truth and accuracy. In particular, consistent with the directions I will give you in relation to the case against Mr Rewha, as a matter of law, you should only act upon her evidence if you are satisfied beyond reasonable doubt that her evidence is truthful, reliable and accurate. If you are not satisfied beyond reasonable doubt that the evidence of Ms Greer is truthful, reliable and accurate, then you should disregard it.

1. On appeal to the High Court, Mr Huxley asserted that [35]:

(a) the impugned direction required the jury to be satisfied beyond reasonable doubt that Ms Greer's evidence was truthful, reliable and accurate before the jury could use her evidence in considering any of the cases concerning Mr Huxley, Mr Rewha and Ms Doyle;

(b) in other words, the impugned direction was not (and would not have been understood by the jury to have been) limited to the case against Mr Rewha;

(c) consequently, the impugned direction limited the use to be made by the jury of Ms Greer's evidence in Mr Huxley's defence, by conveying that Ms Greer's evidence was to be disregarded if the jury did not accept her evidence beyond reasonable doubt;

(d) the impugned direction was correct to the extent that it applied to the use of Ms Greer's evidence in the Crown case against Mr Rewha;

(e) however, the impugned direction was wrong to the extent that it applied to Mr Huxley's defence because if the jury accepted Ms Greer's evidence, as it related to Mr Huxley's defence, Mr Huxley would have been entitled to an acquittal if Ms Greer's evidence raised a reasonable possibility that Mr Huxley was not guilty.

1. A majority of the High Court (Gordon, Steward & Gleeson JJ; Gageler CJ & Jagot J dissenting) dismissed the appeal.
2. The majority held that the impugned direction did not point the jury explicitly to the use to be made of Ms Greer's evidence in Mr Huxley's defence. The jury would not have drawn an inference that the impugned direction applied to all uses of Ms Greer's evidence in the joint trial. The majority was satisfied that, when the impugned direction was considered in the context of the summing up as a whole, the jury would not have understood the impugned direction in the manner in which Mr Huxley contended.
3. By contrast, the minority held that the jury ought reasonably to have understood the trial judge to be directing the jury that the jury could only act on Ms Greer's evidence generally if satisfied beyond reasonable doubt that Ms Greer's evidence was truthful, reliable and accurate. That direction was wrong in law in the case against Mr Huxley. The trial judge's error was reinforced by subsequent directions because those subsequent directions never conveyed that the jury was not required to be satisfied beyond reasonable doubt that Ms Greer's evidence was truthful, reliable and accurate in the case against Mr Huxley but, rather, the jury was required only to decide if Ms Greer's evidence gave rise to a reasonable doubt about Mr McCabe's cause of death.
4. The minority also said that the trial judge's concern that the making of two separate directions, one in the case against Mr Rewha and the other in the case against Mr Huxley, would have caused confusion, was misplaced [31]. Their Honours elaborated [31]:

In the case of co‑accused, juries are routinely directed to use some evidence against one co‑accused only and to disregard the same evidence against another co‑accused, even if the evidence may incriminate both co‑accused (Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 89, citing R v Harbach (1973) 6 SASR 427 at 433). In the present case, the mental exercise required of the jury would have been no more difficult. The trial judge could have given the Robinson direction applying generally (as the trial judge did). The trial judge could have given the required direction about Greer's evidence in the case against Rewha only (that the jury needed to be satisfied beyond reasonable doubt as to its truthfulness, reliability, and accuracy in order to convict Rewha). The trial judge could have given the required direction about Greer's evidence in the case against Huxley only (that, albeit in light of the Robinson direction, if, in the context of the whole of the evidence, the jury considered that Greer's evidence raised a reasonable doubt to the effect that McCabe's cause of death was the assault in the Burnda Street unit, Huxley had to be acquitted).

1. The trial judge's directions to the jury that are relevant for the purposes of ground 3 must be considered by taking the directions (and the summing up) as a whole. They must be considered from the perspective of a jury listening to those directions (and the summing up) as a whole and how the jury might understand them, and not upon a subtle examination of the transcript or by giving undue prominence to any individual parts. See R v Dookheea.[207]
2. His Honour stated that he needed to say something 'about Mr Christensen's evidence ... as a matter of law because of what [Mr Christensen] said implicating Ronzitti, really as an accessory after the fact to the stealing offence committed at Claremont Firearms' (ts 1551 ‑ 1552). His Honour explained, in effect, that it was necessary for him to give the direction about Mr Christensen's evidence because Mr Christensen had implicated Mr Ronzitti as an accessory after the fact to the stealing offence. Although Mr Christensen's implication of Mr Ronzitti was the rationale for giving the direction, his Honour did not confine the direction to Mr Christensen's evidence solely to the extent that it implicated Mr Ronzitti. The direction would likely have been understood by the jury as a direction about Mr Christensen's evidence generally.
3. Next, his Honour noted that '[t]he three accused are charged together as accomplices' (ts 1552). His Honour then stated that the jury needed 'to carefully scrutinise the evidence of Mr Christensen' (ts 1552). His Honour explained that the necessity to carefully scrutinise Mr Christensen's evidence was 'because [the jury] may consider that [Mr Christensen] has a certain degree of self‑interest in giving his evidence' (ts 1552). His Honour added that Mr Christensen 'may be seeking to justify or at least minimise his own conduct ... and by doing so [Mr Christensen has] implicated Ronzitti', who had denied in his police interviews any involvement in the offending (ts 1552). His Honour's statement that it was necessary for the jury to carefully scrutinise Mr Christensen's evidence and his Honour's explanation that the necessity arose because the jury may consider that Mr Christensen had a self‑interest in giving his evidence were not confined to Mr Christensen's evidence solely to the extent that it implicated Mr Ronzitti. His Honour referred to the implication of Mr Ronzitti as, in effect, an aspect of Mr Christensen's self interest in giving evidence that may have involved Mr Christensen justifying or at least minimising his own conduct. The statement and the explanation would likely have been understood by the jury as a statement and an explanation about Mr Christensen's evidence generally.
4. After recounting Mr Christensen's 'position' in relation to Mr Ronzitti having woken him in the early hours of the morning of 22 November 2019, their subsequent actions in travelling to Yangebup and their involvement in burying the firearms and after recounting Mr Ronzitti's 'position' that he was not involved at all in the offending, his Honour directed the jury that:

(a) the fact that 'there is a degree of self‑interest' in Mr Christensen giving his evidence 'is not a reason of itself for [the jury] to reject the evidence of Christensen, but it is a reason for [the jury] to give [Mr Christensen's] evidence careful scrutiny and to compare it with what is known about the circumstances of the charged offences from other evidence, and what other facts are accepted by [the jury] as reliable' (ts 1553); and

(b) the jury 'should consider whether there is any other evidence which confirms the evidence of Mr Christensen, and that is because [the jury] might not want to accept his evidence without seeing some independent evidence that confirms his account' (ts 1553).

1. That direction by his Honour about the necessity for the jury, in effect, to carefully scrutinise Mr Christensen's evidence and to consider whether his evidence is supported or corroborated by other evidence, was not confined to Mr Christensen's evidence solely to the extent that it implicated Mr Ronzitti. The direction would likely have been understood by the jury as a direction about Mr Christensen's evidence generally.
2. Next, his Honour told the jury that it was 'a matter for [the jury] to consider whether [the jury] accept[ed] the evidence of Christensen', but having regard to what his Honour had told the jury about Mr Christensen and his evidence, the jury 'must carefully scrutinise that evidence, particularly in view of its prejudicial effect on Ronzitti' (ts 1553).
3. The requirement that the jury 'must carefully scrutinise [Mr Christensen's] evidence, particularly in view of its prejudicial effect on Ronzitti' conveyed that the jury must carefully scrutinise Mr Christensen's evidence generally and that a specific and important aspect of this general requirement was the prejudicial effect of the evidence upon Mr Ronzitti. The requirement was not confined to Mr Christensen's evidence solely to the extent that it implicated Mr Ronzitti. The requirement would likely have been understood by the jury as a requirement in relation to Mr Christensen's evidence generally.
4. Later in his summing up, his Honour told the jury that he wanted 'to return ... to what [his Honour had] said by way of a direction as to the scrutiny [the jury] should give to Mr Christensen's evidence and that it implicates Mr Ronzitti' and to his Honour's suggestion that '[the jury] might look for some confirmation or corroboration in other evidence of Mr Christensen's account' (ts 1558). There were, relevantly, two aspects to that statement. First, his Honour referred to the direction he had previously given about the scrutiny the jury should give to Mr Christensen's evidence. Secondly, his Honour referred to the direction he had previously given about Mr Christensen's evidence implicating Mr Ronzitti. The first aspect of his Honour's statement, in referring to the direction he had previously given about the scrutiny the jury should give to Mr Christensen's evidence, would likely have been understood by the jury as a statement about Mr Christensen's evidence generally and not merely a statement about Mr Christensen's evidence solely to the extent that it implicated Mr Ronzitti.
5. Towards the end of his summing up, his Honour mentioned 'in relation to Mr Ronzitti' the warning his Honour had given the jury 'about giving careful scrutiny to Mr Christensen's evidence to the extent that it implicates him on the basis that it may be seen to be given out of self‑interest' in that Mr Christensen was giving 'an account that minimises his involvement and distances himself from the burglary but in a way that necessarily implicates Ronzitti'. That recapitulation by his Honour of his previous direction about carefully scrutinising Mr Christensen's evidence expressed the warning in a manner that confined the warning to Mr Christensen's evidence solely to the extent that it implicated Mr Ronzitti.
6. Shortly afterwards, his Honour contrasted Mr Christensen's evidence which implicated Mr Ronzitti with Mr Christensen's evidence which exculpated the appellant. In particular, his Honour said, in effect, that the situation in relation to the appellant was 'different' from the situation in relation to Mr Ronzitti (ts 1624). His Honour told the jury that, on the basis of Mr Christensen's evidence, the appellant 'did not do anything in relation to [the guns and the other items that had been stolen] that would be capable of constituting assistance to the offender' and that there was no evidence that the appellant was 'an accessory after the fact' (ts 1624 ‑ 1625).
7. I am of the opinion, after considering the trial judge's directions and comments which I have set out at [403] ‑ [411] above (and the summing up) as a whole, that the jury would likely have understood that:

(a) Mr Christensen had 'a degree of self‑interest' in giving his evidence; and

(b) consequently, the jury should carefully scrutinise Mr Christensen's evidence and should consider whether there is any other evidence which confirms his evidence.

1. The jury should reasonably have understood his Honour's directions to require the jury to have regard to Mr Christensen's self‑interest in giving his evidence and not to accept and act upon Mr Christensen's evidence, to the extent that it exculpated the appellant on counts 1, 2 and 3, unless the jury, after carefully scrutinising Mr Christensen's evidence and considering whether there was any other evidence which corroborated his evidence, were satisfied that his evidence exculpating the appellant was truthful, reliable and accurate.
2. Those directions were wrong in law.
3. Mr Christensen's credibility, to the extent that his evidence exculpated the appellant on counts 1, 2 and 3, was significant in the jury's evaluation of whether the State had proved the appellant's guilt on those counts beyond reasonable doubt. The jury were not precluded, as a matter of law, from acting upon Mr Christensen's evidence, to the extent that it exculpated the appellant, unless the jury had regard to Mr Christensen's self‑interest in giving his evidence and, after carefully scrutinising his evidence and considering whether there was any other evidence which corroborated his evidence, were satisfied that Mr Christensen's evidence exculpating the appellant was truthful, reliable and accurate. The question for the jury in this connection was whether the jury were satisfied that Mr Christensen's evidence, to the extent that it exculpated the appellant on counts 1, 2 and 3, raised a reasonable doubt about the appellant's guilt on counts 1, 2 and 3.
4. I am satisfied that the trial judge's erroneous directions in relation to Mr Christensen's evidence, to the extent that his evidence exculpated the appellant on counts 1, 2 and 3, had the capacity to undermine the presumption of innocence in relation to the appellant and to deflect the jury from their task of determining whether the State had proved beyond reasonable doubt that the appellant was guilty of counts 1, 2 and 3.
5. His Honour should have given separate directions in relation to Mr Christensen's evidence having regard to the State's case against each of Mr Christensen, the appellant and Mr Ronzitti. See, generally, the observations of Gageler CJ and Jagot J in Huxley [31]. Although Gageler CJ and Jagot J were in dissent in the result of Huxley, there is no reason, with respect, to doubt the correctness of those observations.
6. The trial judge's erroneous directions constituted a wrong decision by his Honour on a question of law within s 30(3)(b) of the Criminal Appeals Act 2004 (WA). I am not persuaded that the error could not have deprived the appellant of a chance of acquittal that was fairly open to him on counts 1, 2 and 3. See Baini v The Queen;[208] Filippou v The Queen.[209] The conviction of the appellant on those counts was not inevitable.
7. Ground 3 has been established.
8. Counsel for the State conceded, in effect, that if the trial judge misdirected the jury in the manner that I have found then the proviso in s 30(4) of the Criminal Appeals Act could not be applied. The concession was properly made.

1. In Wark v The State of Western Australia,[210] Mazza and Vaughan JJA and I explained the function of an appeal court in determining whether, having regard to the evidence, a verdict of guilty on which a conviction is based is unreasonable or cannot be supported. It is convenient to reproduce at [422] ‑ [435] below what was written on that occasion.
2. It is a question of fact whether, having regard to the evidence, a verdict of guilty on which a conviction is based is unreasonable or cannot be supported. See M v The Queen;[211] Zaburoni v The Queen;[212] GAX v The Queen.[213]
3. An intermediate court of appeal (the appellate court) must decide that question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in all the circumstances to permit the verdict to stand. See M (492 ‑ 493); SKA v The Queen.[214]
4. The appellate court, in making an independent assessment of the whole of the evidence to determine whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, must weigh the whole of the evidence (in particular, the competing evidence). See SKA [22], [24].
5. The appellate court's task is not to consider, as a question of law, merely whether there was sufficient evidence to sustain a conviction. See Morris v The Queen.[215]
6. The appellate court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, 'must not disregard or discount either the consideration that the [tribunal of fact] is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the [tribunal of fact] has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations': M (493); R v Nguyen;[216] SKA [13].
7. Circumstantial evidence must not, of course, be considered on a piecemeal basis. It must be evaluated in its entirety. See R v Hillier.
8. In R v Baden‑Clay,[217] French CJ, Kiefel, Bell, Keane and Gordon JJ made these observations in relation to determining whether, in a circumstantial evidence case, a reasonable inference consistent with the accused's innocence is open:

For an inference to be reasonable, it 'must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence' (Peacock v The King [1911] HCA 66; (1911) 13 CLR 619, 661, quoted in Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82, 104) (emphasis added). Further, 'in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence' (R v Hillier [2007] HCA 13; (2007) 228 CLR 618, 637 [46] (footnote omitted)) (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal (R v Hillier [2007] HCA 13; (2007) 228 CLR 618, 638 [48]. See also Chamberlain v The Queen [No 2] [1984] HCA 7; (1984) 153 CLR 521, 535).

1. In Pell v The Queen,[218] the High Court made these statements about the assessment of the credibility of a witness by a jury, in the context of a ground of appeal which alleges that the jury's verdict was unreasonable or insupportable having regard to the evidence:

[T]he assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness‑box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function. (footnote omitted)

1. The appellate court examines the trial record to ascertain whether, despite the jury's advantage in having seen and heard the witnesses in the context of the trial, the jury, acting rationally, should have entertained a reasonable doubt as to proof of guilt.
2. The appellate court's function is to determine for itself whether the evidence at trial was sufficient in nature and quality to remove any reasonable doubt that the accused was guilty of the offence charged. See Dansie.[219] The critical issue is 'whether the court's assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the [fact finding tribunal] can be taken to have had by reason of having seen and heard the evidence at trial': Dansie [16].
3. The ultimate question for the appellate court must always be whether the appellate court thinks that upon the whole of the evidence it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty. See M (494 ‑ 495); Hillier [20]; Fitzgerald v The Queen;[220] Baden‑Clay [66].
4. The setting aside of a tribunal of fact's verdict of guilty because, having regard to the evidence, it is unreasonable or cannot be supported is a serious step. Trial by the appellate court is not to be substituted for trial by the tribunal of fact. See Baden‑Clay [65] ‑ [66].
5. The appellate court's reasons must disclose its assessment of the capacity of the evidence to support the verdict. See SKA [22] ‑ [24]; BCM v The Queen;[221] GAX [25].
6. The nature and extent of the appellate court's task, in a particular case, will be informed by:

(a) the elements of the offence;

(b) the accused's defence;

(c) the issues in contest at the trial;

(d) the manner in which the trial was conducted;

(e) the way in which the case was ultimately left to the tribunal of fact;

(f) whether the tribunal of fact was a judge (who must state the principles of law that he or she has applied and the findings of fact on which he or she has relied) or a jury (which does not give reasons); and

(g) the particulars of the ground of appeal.

1. In Austic v The State of Western Australia,[222] the prosecution sought to prove, on the basis of circumstantial evidence, that the appellant was guilty of wilful murder. Mazza JA, Sofronoff AJA and I noted at [73] that circumstantial evidence, as distinct from direct evidence, is evidence which, if accepted, tends to prove a fact from which the existence of a fact in issue may be inferred. See Festa v The Queen.[223] Mazza JA, Sofronoff AJA and I also said [75]:

Direct evidence is not necessarily more reliable than circumstantial evidence. Indeed, in some cases, circumstantial evidence can be more persuasive than direct evidence. As McHugh J noted in Shepherd v The Queen (Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 at 592), there will often be cases 'where the probability of the correctness of an inference of guilt drawn from the circumstances of the case is greater than the probability of the truth of any of the individual circumstances'. Circumstantial evidence cumulatively eliminates other possibilities.

1. Ground 1 must be evaluated having regard to my reasons and conclusions in relation to ground 3. It is apparent from the jury's verdicts of guilty on counts 1, 2 and 3 that the jury rejected the evidence of Mr Christensen that exculpated the appellant on those counts. However, no weight can be given to the jury's verdicts in considering ground 1 because the jury's approach to that part of Mr Christensen's evidence was tainted by the trial judge's misdirection the subject of ground 3.
2. In my opinion, the State had a strong circumstantial case against the appellant based upon the evidence I have summarised at [341] above. Although defence counsel for the appellant sought to explain some of that evidence in his closing address at the trial, the accuracy of the circumstantial evidence was not challenged or seriously challenged.
3. I agree with Quinlan CJ and Hall JA's analysis of the objective evidence at the trial including the circumstantial evidence relied upon by the State in relation to the appellant.
4. Subject to my reasons and conclusions in relation to ground 3, on my examination of the trial record, a properly directed jury would have been entitled to form the view and (subject to this court's significant disadvantage in not having seen and heard the witnesses, in particular Mr Christensen, give their evidence) I incline to the view, having regard to the objective evidence at the trial including the circumstantial evidence relied upon by the State in relation to the appellant, that Mr Christensen's evidence was in material respects untruthful, unreliable or inaccurate. Subject to the qualifications I have mentioned, I am inclined to reject those parts of Mr Christensen's evidence that exculpated the appellant. However, in the absence of seeing and hearing Mr Christensen give his evidence, I am unable to reach a concluded view in relation to the truthfulness, reliability and accuracy of that evidence.
5. Subject to my reasons and conclusions in relation to ground 3, if Mr Christensen's evidence that exculpated the appellant were to be rejected and put aside, a properly directed jury would be entitled to be satisfied beyond reasonable doubt and I would be satisfied beyond reasonable doubt, based upon the objective evidence at the trial including the circumstantial evidence relied upon by the State in relation to the appellant, that the only reasonable inference is that the appellant committed each of counts 1, 2 and 3.
6. Subject to my reasons and conclusions in relation to ground 3, I am satisfied, after reviewing the trial record and weighing the whole of the evidence, that it would be reasonably open to a properly directed jury to be satisfied beyond reasonable doubt that the appellant was guilty of counts 1, 2 and 3. The trial record does not require the conclusion that a properly directed jury must necessarily entertain a reasonable doubt in relation to the appellant's guilt on any of those counts. Verdicts of guilty would be supported by evidence that a properly directed jury would be entitled to accept and by inferences that a properly directed jury would be entitled to draw. My assessment of the matters complained about by the appellant, in the context of ground 1, does not persuade me that a properly directed jury, acting reasonably, should decide that the State had not proved all of the elements of counts 1, 2 and 3. A properly directed jury, acting reasonably, would not be precluded by the state of the evidence at trial from convicting the appellant. The nature and quality of the evidence would be sufficient to remove any doubt that the appellant was guilty.
7. Ground 1 has not been made out.

1. Counsel for the appellant, in the appellant's orders wanted, contended that if ground 2 or ground 3 was made out, but ground 1 failed, then a new trial on counts 1, 2 and 3 should be ordered. Counsel also contended that if ground 1 was made out then this court should set aside the judgments of conviction on counts 1, 2 and 3 and substitute judgments of acquittal. Those contentions are correct.
2. I would grant leave to appeal on each of the grounds. Grounds 1 and 2 have not been made out. However, ground 3 has been established. The judgments of conviction must be set aside and a new trial of the appellant must be had.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[13] See sample MLE18 referred to at ts 671; ts 1074 ‑ 1081, ts 1084.

[14] ts 1106 ‑ 1107; exhibit 7 (pages 559 ‑ 574).

[17] ts 236 ‑ 242, ts 319; exhibit 4.1; exhibit 4.2.

[22] ts 656 - 658, ts 776; exhibit 7 (page 315).

[23] ts 774; exhibit 7 (pages 325 ‑ 329).

[30] ts 598, ts 1160; exhibit 7 (page 185).

[38] ts 863; exhibit 7 (pages 423 - 424).

[94] Appellant's outline of submissions [31] ‑ [39] (WAB 17 ‑ 20).

[95] Respondent's outline of submissions [66] (WAB 143 ‑ 144).

[96] Sturniolo v The State of Western Australia [2023] WASCA 147 [70] (Quinlan CJ, Beech & Hall JJA).

[97] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 (R v Baden-Clay) [46] ‑ [47] (French CJ, Kiefel, Bell, Keane & Gordon JJ).

[98] R v Hillier [2007] HCA 13; (2007) 228 CLR 618 (R v Hillier) [48] (Gummow, Hayne & Crennan JJ).

[99] Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651 (Dansie) [7].

[101] Dansie [37] ‑ [38]; Lang v The Queen [2023] HCA 29 [143], [251].

[103] Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 576 (Mason CJ), 581 (Dawson J).

[104] This is not to suggest any onus on the part of the accused, simply that the evidence adduced by the State, as a whole, excluded any reasonable inference consistent with Mr Christensen's innocence.

[106] See [28] above.

[110] See [110] and [116] above.

[112] Appeal ts 20; Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 576 (Mason CJ), 581 (Dawson J).

[113] Chamberlain v The Queen [No 2] [1984] HCA 7; (1984) 153 CLR 521, 535 (Gibbs CJ & Mason J); cited with approval in R v Hillier [48] (Gummow, Hayne & Crennan JJ).

[114] JRR Tolkien, The Monsters and the Critics and Other Essays, 1983, George Allen & Unwin, 121.

[116] Appellant's outline of submissions [33] (WAB 18).

[117] Appellant's outline of submissions [47] ‑ [49] (WAB 24).

[118] Petty and Maiden v The Queen [1991] HCA 34; (1991) 173 CLR 95 (Petty and Maiden).

[119] Gray v The State of Western Australia [2015] WASCA 108 (Gray).

[120] Respondent's outline of submissions [51] (WAB 25).

[121] Awad v The Queen [2022] HCA 36; (2022) 275 CLR 421 (Awad v The Queen).

[122] Awad v The Queen [34] (Kiefel CJ & Gleeson J), [106] (Gordon & Edelman JJ).

[124] Respondent's outline of submissions [4] (WAB 120).

[125] Respondent's outline of submissions [8] ‑ [9] (WAB 121).

[126] Respondent's outline of submissions [15] (WAB 123).

[127] Respondent's outline of submissions [6] ‑ [7] (WAB 121) referring to Kitto v The State of Western Australia [2019] WASCA 161 [87] (Murphy, Mazza & Mitchell JJA) (Kitto).

[128] Respondent's outline of submissions [17] (WAB 123 ‑ 124) referring to Kazemi v The State of Western Australia [2003] WASCA 301; (2003) 28 WAR 176 (Kazemi).

[129] Respondent's outline of submissions [18] (WAB 124) referring to Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54.

[130] Respondent's outline of submissions [21] (WAB 124 ‑ 125).

[131] Respondent's outline of submissions [28] (WAB 127).

[132] Gray [50] (Mazza JA; McLure P & Newnes JA agreeing).

[133] Petty and Maiden, 99 (Mason CJ, Deane, Toohey & McHugh JJ).

[134] Petty and Maiden, 102 (Mason CJ, Deane, Toohey & McHugh JJ).

[135] See Sorby v The Commonwealth [1983] HCA 10; (1983) 152 CLR 281, 309 (Mason, Wilson & Dawson JJ); X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92 [102] ‑ [105] (Hayne & Bell JJ; Kiefel J agreeing).

[136] Respondent's submissions [16] (WAB 123).

[137] Subject to the circumstances identified in Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217. See Boxer v The Queen (1995) 14 WAR 505, 538 ‑ 540 (Malcom CJ, Franklyn & Owen JJ agreeing); Challis v The State of Western Australia [2014] WASCA 8 [46] ‑ [48] (McLure P).

[138] Kazemi [8], [58] (Templeman J; Miller J).

[139] Kazemi [26], [52], [58] ‑ [59] (Templeman J; Miller J agreeing).

[140] Winning v The Queen [2002] WASCA 44 (Winning).

[141] Lowery v The Queen [1974] AC 85.

[142] R v Bauer [2018] HCA 40; (2018) 266 CLR 56 [49]; see also Russell v State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326 [[370] (Buss JA) ; Mansfield v State of Western Australia [2017] WASCA 178; (2017) 52 WAR 233 [106] (Buss JA).

[143] Winning [40] ‑ [41] (Olsson AUJ; Malcolm CJ & Steytler J agreeing). Whether this proposition has acquired the status of a principle of the common law of Australia was a matter left open by the High Court in McNamara v The King [2023] HCA 36 (McNamara) [48] (Gageler CJ, Gleeson & Jagot JJ). As established in McNamara, the position is otherwise in states that have adopted the Uniform Evidence Acts.

[144] Winning [42] (Olsson AUJ; Malcolm CJ & Steytler J agreeing).

[145] See [89] above and ts 1234 ‑ 1241.

[146] Kitto [66] ‑ [69] (Murphy, Mazza & Mitchell JJA).

[147] Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427, 440 ‑ 441. See also HCF v The Queen [2023] HCA 35 [43] (Gageler CJ, Gleeson & Jagot JJ).

[148] See [93] above.

[150] See [91] and [99] above.

[151] Gray [59] (Mazza JA; McLureP & Newnes JA agreeing).

[152] Gray [55] (Mazza JA; McLureP & Newnes JA agreeing).

[154] See [94] above.

[155] Taylor v The State of Western Australia [2020] WASCA 113 [78] (Mazza, Mitchell & Beech JJA).

[156] XHA v The State of Western Australia [2022] WASCA 8 (XHA).

[157] Davy-Russo v The State of Western Australia [2022] WASCA 140 (Davy-Russo).

[158] Appellant's outline of submissions [54] (WAB 26 ‑ 27).

[159] Appellant's outline of submissions [55] (WAB 27).

[160] Respondent's outline of submissions [42] (WAB 132).

[161] Respondent's outline of submissions [43] ‑ [44] (WAB 132 ‑ 133).

[162] Evans v The State of Western Australia [2012] WASCA 13 [49] (Mazza JA).

[163] Respondent's outline of submissions [46] (WAB 133).

[164] Respondent's outline of submissions [49] (WAB 134 ‑ 135).

[165] Respondent's outline of submissions [53] (WAB 136).

[166] Respondent's outline of submissions [54] (WAB 136).

[167] Robinson v The Queen [1991] HCA 38; (1991) 180 CLR 531 (Robinson).

[168] Hargraves v The Queen [2011] HCA 44; (2011) 245 CLR 257 (Hargraves).

[169] Robinson, 534 (Mason CJ, Brennan, Deane, Toohey & McHugh JJ).

[170] Robinson, 536 (Mason CJ, Brennan, Deane, Toohey & McHugh JJ).

[171] Hargraves [24] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).

[172] Hargraves [35], [38] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).

[173] Hargraves [45] ‑ [46] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).

[174] Davy-Russo [1] ‑ [4] (Buss P, Hall JA & Livesey AJA).

[175] Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 (Webb v The Queen).

[176] Davy-Russo [54] (Buss P, Hall JA & Livesey AJA) (footnoted omitted).

[177] Davy-Russo [56] ‑ [63] (Buss P, Hall JA & Livesey AJA).

[178] Awad v The Queen [34] (Kiefel CJ & Gleeson J).

[179] Awad v The Queen [95] (Gordon & Edelman JJ). See also their Honours' application of Hargraves at [101].

[180] Awad v The Queen [114], [116] (Steward J).

[181] Awad v The Queen [33] (Kiefel CJ & Gleeson J).

[182] Huxley v The Queen [2023] HCA 40; (2023) 98 ALJR 62 (Huxley v The Queen). Following the delivery of the decision in Huxley v The Queen, the parties to the present appeal were invited to make any further submissions as to the effect of that decision on ground 3. Further submissions were filed by both Mr Egan and the State on 20 December 2023.

[183] Huxley v The Queen [41] (Gordon, Steward & Gleeson JJ).

[184] Huxley v The Queen [42] (Gordon, Steward & Gleeson JJ).

[185] See [105] above.

[188] See exhibits 1, 2 and 3; ts 196 ‑ 199.

[189] See [156] ‑ [172] above.

[190] See [185] ‑ [186] above.

[193] Awad v The Queen [102] (Gordon & Edelman JJ).

[194] See [102] ‑ [103].

[195] Not because the DNA was an indispensable link but because it provided the critical mass required to reach that conclusion.

[196] Huxley v The Queen [60] (Gordon, Steward & Gleeson JJ).

[197] Huxley v The Queen [79] (Gordon, Steward & Gleeson JJ).

[198] R v Baden-Clay [65] (French CJ, Kiefel, Bell, Keane & Gordon JJ).

[199] Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1 [38] (McHugh & Gummow JJ).

[200] Respondent's outline of submissions [56] (WAB 137).

[201] Hofer v The Queen [2021] HCA 36; (2021) 274 CLR 351 [61] ‑ [63] (Kiefel CJ, Keane & Gleeson JJ), [88] (Gageler J).

[202] Stafford v The Queen (1993) 67 ALJR 510, 510 ‑ 511.

[203] Ramey v The Queen (1994) 68 ALJR 917.

[204] North Ganalanja Aboriginal Corporation v The State of Queensland [1996] HCA 2; (1996) 185 CLR 595, 643 (McHugh J).

[205] Etherton v The State of Western Australia [2005] WASCA 83; (2005) 30 WAR 65 [32].

[206] Hargraves v The Queen [2011] HCA 44; (2011) 245 CLR 257.

[207] R v Dookheea [2017] HCA 36; (2017) 262 CLR 402 [37] (Kiefel CJ, Bell, Gageler, Keane, Nettle & Edelman JJ).

[208] Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469 [49] (Gageler J).

[209] Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 [15], [48] (French CJ, Bell, Keane & Nettle JJ).

[210] Wark v The State of Western Australia [2023] WASCA 66 [329] ‑ [342].

[211] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492 ‑ 493 (Mason CJ, Deane, Dawson & Toohey JJ).

[212] Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482 [56] (Gageler J).

[213] GAX v The Queen [2017] HCA 25; (2017) 91 ALJR 698 [25] (Bell, Gageler, Nettle & Gordon JJ).

[214] SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).

[215] Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454, 473 (Deane, Toohey & Gaudron JJ). See also M (492 ‑ 493); SKA [20].

[216] R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 [33] (Hayne, Heydon, Crennan, Kiefel & Bell JJ).

[217] R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308 [47].

[218] Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123 [37] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ).

[219] Dansie [7] (Gageler, Keane, Gordon, Steward & Gleeson JJ).

[220] Fitzgerald v The Queen [2014] HCA 28; (2014) 88 ALJR 779 [5] (Hayne, Crennan, Kiefel, Bell & Gageler JJ).

[221] BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101 [31] (Hayne, Crennan, Kiefel, Bell & Keane JJ).

[222] Austic v The State of Western Australia [2020] WASCA 75; (2020) 57 WAR 39.

[223] Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 [5] (Gleeson CJ).